# FILED

August 21, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9707-CC-00293 Appellee, * BLOUNT COUNTY VS. * Hon. D. Kelly Thom as, Jr., Judge PHILLIP WAYNE DAVIS, * (Driving Under the Influence, Fourth Offense, and Driving on a R evoked Appellant. * License, Second Offense)

*
For Appellant : For Appellee : Natalee S. Hurley John Knox Walkup Asst. District Public Defender Attorney General and Repor ter 419 High Street Maryville, TN 37804 Todd R. Kelley (at trial) Assistant Attorney Gener al 425 Fifth Avenue North Julie A. Ma rtin, Att orney Second Floor, Co rdell Building P.O. Box 426 Nashville, TN 37243-0493 Knoxville, TN 37901-0426 (on appeal) Philip Morton Assistant District A

ttorney General 363 Court Street Maryville, TN 37804

OPINION FILED:__________________________

AFFIRMED
GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Phillip Wayne Davis, entered guilty pleas to dri ving under the influence, fourth offense, and driv ing on a revoked lic

ense, second offense. The trial court imposed an el even-month, twenty- nine-day sentence, with a release eligibilit

y date at seventy per

cent, for driving under

the influence and ordered a concurrent sentence of eleven months and twenty -nine days, with a release eligibilit

y date of seventy perce nt, for driving on a r evoked license. The defendant was fined $1,600.00.

In this appeal of right, the de fendant claims that the trial co urt erred by sentencing the defendant to serv e an effective term of "over eig ht months." We find no error and affirm the judgment of the t rial court.

The underlying facts w ere stipulated: The arresting officer observed the defendan t's vehicle traveling very

slowly and almost s

triking a curb on Foothills Mall Dri

ve. A traffic stop was made and the officer noticed that the defend ant was unsteady on his feet, had bloodshot eyes, and a str ong odor of alcohol. The defendant could not perform simple field s obriety tests. At the time, the defendant's license was in a revoked st atus. A breathalyzer examination indicated that th e defendant had a blood alcohol leve l of .12.

The defendant argues that his cri mes are not so severe in na ture that they require incarceration of approximately two hundred fifty-four days. He contends that the trial cour t gave no reasons for inc reasing the sentence abov e the minimum.
When a challenge is made to the length, range, or manner of service3 of a sentence, it is the duty of this court to conduct a "de nov o review ... with a presumption that the determinations mad e by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d).

Our review req uires an analysis of (1) the evidence, if any, received at the trial and sentencing he aring; (2) the presenten ce report; (3) the princ iples of sentencing and the arguments of counsel relative to sent encing alternatives; (4) the nature and characteristic s of the offense; (5) any mitigat ing or enhancing factors;(6) any statements made by the defendant in his own behalf ; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-3 5-102, -103, and -210. State v. Smith , 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

In misdemeanor sentencing, a se parate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as t o the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles, purposes, and goals of the Cr iminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40-35-104, -1 17, and -302; State v. Palmer , 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an authorized determinant sent ence with a percentage of tha t sentence designated for eligibility for rehabilitative prog rams. Generally, a per centage of not greater than 75% of the sentence should be fixed for a m isdemeanor offender; however, a DUI offender may be required to ser ve the full 100% of his sentence. Palmer , 902 S.W.2d at 393-94. In de termining the percentage of the sentence, the court m ust consider enhancement and mitigat ing factors as well as the legislative purposes and principles related to se ntencing. Id.4 Upon service of that percent age, the administrativ

e agency governi ng the rehabilitative programs determines which among the lawful programs available is appropriate. The trial cour t retains the authority to place the defendant on probation either immediately or after a term of periodic or continuou s confinement. Tenn. Code Ann. § 40-35-302(e). The l egislature has encourag ed courts to consider public or private ag encies for probation superv ision prior to direct ing supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The go verning statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility . The misdemeanant, unlike the felon, is not entitled to the pre sumption of a minimum sentence. State v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

The defendant, forty-six ye ars of age, has three prior convictions for driving under the influence and four prior convic tions for driving on a

revoked license. He has other conv ictions as well; at least two are felonies. P rior attempts at alcohol a buse treatment have been u nsuccessful . The trial court indic ated some leniency by suggesting that the defendant would serve "the minimum mandato ry one hundred twenty days before he's eligible for any kind of release or work programs." Under all of the circumstances, the sentences impo sed are fully warranted.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge5 CONCUR:

_____________________________ Joseph M. Tipto n, Judge

_____________________________ David H. Welles, Judge