### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

anuary 23, 2001

STATE OF TENNESSEE v. WILLIAM P. BROOKS

Direct Appeal from the Circuit Court for Blount County No. C-11807 D. Kelly Thomas, Jr., Judge

No. E2000-00555-CCA-R3-CD March 22, 2001

The defendant, William P. Brooks, was convicted of driving on a revoked license, third offense, a Class A misdemeanor. The trial court imposed a sentence of 11 months and 29 days, requiring 90 days to be served in jai

l and the balance

to be served onsupervised proba tion. In this app

eal of right, the defendant arg

ues that the trial c

ourt erred by

refusing to

suppress evidence and by imposing an excessive sentence. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.

G ARY R. W ADE , P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and N ORMA M C G EE O GLE , JJ., joined.

Julie A. Rice, Contract Appellate Defender, Knoxville, Tennessee, and Mack Garner, District Public Defender, Maryville, Tennessee, for the appe llant, William P. Brooks.

Paul G. Summers, Attorney General and Reporter; Clin

ton J. Morgan, Assis

tant Attorney

General; and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee

.

OPINION

The state and the defense entered a written stipulation of proof which established the basis for the conviction. On October 18, 199 8, Maryville Police Officer Eddie Davis, while on routine patrol, made a random

check of t he license plate on a vehicle driven by the defendant. Upon determining that the license was registered to another vehicle, Officer Davis stopped the defe ndant for violation of the registration law. Upon being presented with the driver's license information offered by the defendant, Officer Davis determined that the license had been revoked based upon a conviction for driving under the influence of an intoxicant. Records of the Departm ent of Safety established that the defendant had two prior convictions for driving on a revoked license.1 Substan tive issues not raised in this appeal h ave been partially discusse d in other ca ses. See, e.g.
, S tate v

.

Rhymer , 915 S.W .2d 465 (Tenn. C rim. App. 1 995); Williams v . State , 506 S.W .2d 193 (Tenn. C rim. App. 1 973).

-2- The first issue, involving the leg ality of the s

top and arrest,

has been waived

. Tenn. Ct. Crim. Ap p. R. 10(b). The defendant's brief contains no argument, no citation to authorities, and no references to the record in reg ard to the motion to su

ppress evidence. It is the duty of the appealing party to preparea record which conveys a fair, accur ate, and complete account of what transpired in the trial cou rt with regard t o the issues which f

orm the basis of the

appeal. Tenn. R. A

pp. P. 24(b); State v. Miller , 737 S.W.2d 556, 558 (T enn. Crim. App. 1987

); Statev. Rhoden , 739 S.W.2d 6 (Tenn. Crim. App. 1987). Absent an essential part of the record, this court must presume that the determination made by the trial court is correct. State v. Taylor , 669 S.W.2d 694, 699 (Tenn. Crim. App. 1983); State v. Baron , 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983) . Ru le 27(a)(7) of the Tennessee Rules of Appellate Procedure specifically requires the citation of authority

. See State v. Aucoin , 756 S.W.2d 705 (Tenn. Crim. App. 1988). 1 The defense brief contains none.

The defend ant doe s argue that the trial court failed to consider the applicable sentencing statute, applied a non-statutory enhancement factor, and failed to consider two mitig ating factors. Due to these errors, the defendant submits that the sentence imposed was excessive.

The defendant's f

irst argument re

lating to sentenc

e is based upon his

interpretation of Tenn. Code Ann. § 55-50-504(a)(2), whic h provides in perti

nent part as follo

ws:

A second or subs equent vio lation of subdivision (a)(1) is a Class A misdemeanor. A person who drives a motor vehicl e on any publ i c highway

of the state at a ti

me when the person's privilege to do so is cancele d, suspended or re

voked because

of a secondor subsequent conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, or driving while intoxicated under § 55- 10-4 01 shall be punished by

confinement for

not less than forty-five (45) day s nor more than one (1) year . . . .

Tenn. Code Ann. § 55-50-504(a)(1) prohibits driving on a canceled, revoked or suspended license,

a Class B misdemeanor. The defendant submits that this court should interpret the statute to mean that the minimum 45-day sentence applies only when the r evocati on was the result of a second or greater conviction for vehicular assault, vehicular homicide, or driving while intoxicated. That is, only those who are committing vehicular assault, vehicular homicide, or driving under the influence,

as opposed to merely driving without a license but otherwise in compliance with law, qualify for the 45-day minimum. S uch an interpretation, the defendant submits, would result in his punishment being imposed under Tenn. Code Ann. § 55-50-504(a)(1), which sets the range at "not less than two days nor more than six months." The state did not address this specific statutory interpretation issue. It merely pointed out that under either statute, a misdemeanant is not entitled to the presumption of

a minimum sentence and that the defendant had a pr ior record which warranted a 90-day incarceration and the denial of probation.-3-

In matters of

statutory c

onstruction, the r

ole of this court is t

o ascertain and g

ive effect to

the intentof the legislature. State v. Williams , 623 S.W.2d 121, 124 (T enn. Crim. App. 1981). Unless ambiguity requires resort elsewhere to ascertain legislative

intent, judicial int

erpretation of a

statute is restricted to the natu ral and ordi nary meaning of t he language used. Roddy Mfg. Co. v. Olson , 661 S.W.2d 868, 871 (Tenn. 1983). Legislative enactments must be interpreted in their nat ural and ordinary sense without a fo

rced constructi

on to either limit or e

xpand their meani ng. State v. Thomas
, 635 S.W.2d 114 , 1 16 (Tenn. 1982). Co urts must construe s

tatutes as a whole

and in conjunction with their surroun ding parts and th

eir interpretat

ion should be consis

t ent with their legislative purposes. State v. Turner , 913 S.W.2d 15 8, 160 (Tenn. 1995). Yet the meaning of a statute is to be determined not from specific words in a single sentence or section but from the act in its entirety in light of the general purpose of the legislation; any

interpretation should express the intentand purpose of the legislation. National Gas Distrib., Inc . v. State , 804 S.W.2d 66, 67 (Tenn. 1991); Loftin v. Langsdon , 813 S.W.2d 475, 478-79 (Tenn. Ct. App. 1991).

Here, the record establishes that the trialcourt agreed with the interpretation offered by the defendant. That is, that the plain language of Tenn. Cod e Ann. § 55- 50-504(a)(2) o nly applies t

o driving on a revoked lice

nse when the revo

cation was due to

a "second or subsequent

conviction for vehicular assault . . ., vehicular hom icide . . ., or drivi

ng while intoxicate

d . . . ." The trial

judge also observed, however, that "this is not a case where the minimum mandatory w

ill have any impact on the sentence I'm going to give any wa y. . . ." The trial court determined that the previous criminal history of the defendant was an enhancement factor and state

d that "a factor

to be considered

is the basis of the revocatio

n was a DUI . . . ." See Tenn. Code Ann. § 40 -35-114(1). The

trial court also found the presence of another enhancement factor, that the defendant had violated the terms of prior sentences involving release into the community. See Tenn. Code Ann. § 40-35-114(8).

The defendan t also complains tha t the trial court f

ailed to consider

any mitiga

ting factors. He maintains that the trial court should have determined that his driving "neither c aus ed nor threatened serious bodi ly injury." See Tenn. Code Ann. § 40-35-113(1).

In misdemeanor sentencing, the court is required to provide the defendant with areasonable opportunity

to be heard as to the length and manner of

the sentence. Th

e sentence must be

specific and consiste

nt with the pur poses of the Act. Tenn. Code Ann. § 40-35-302. Not greater than 75 percent of the sentence should be fixed for serv ice by a misd emeanor offender; however, a DUI offender may

be required to

serve the full 100 percent of his sentence. Tenn. Code Ann. § 40-35- 302(d); State v, Palmer , 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the perc entage of the sentence, the court must consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-302(d).

Upon service of th

e requi red percentage, the administrative agency governing the rehabilitative programs determines which among the lawful programs available is appropriate. The trial court retains the authority to place the defendant on probation either immediately or after a term of periodic or conti

nuous confinemen

t. Tenn. Code Ann. §

40-35-302(e). T

he legislatu

re ha s encouraged

courts to consider public or private agencies for probation supervision prior to directing-4-

superv ision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory scheme is designed to provide the trialcourt with continuing jurisdiction in misdemeanor cases, as wellas a wide latitude of flexibility. The misdemea nant, unlike the felon, is not entitled to the presumption of a minimum sen tence. S tate v. Creasy , 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). Appellate

review of misdeme

anor sentencing

is de novo with a presumption of correctness. See State v. Troutman , 979 S.W.2d 271 (Tenn. 1998).

In this case, it is not ne

cessary f or the court to

interpret Tenn. Code Ann. § 55-50-504. The 45-day minimum was not a factor in the sentence imposed. Given the defendan t's prio r criminal history and,

in particular, his

persistence in driving on a revoked license, the circumstances would warrant a 90-day se

ntence. As indicated, there is no presumptive minimum in misdemeanor sentencing. Both Tenn. Code Ann. § 40-35-114(1) and (8) apply. The defenda nt did not testify at the bench trial or at the sentencing hearing. It was stipulated that the def endant's licen se wa s originally revoked due to driving under the influence. While that should not have been applied as

an enhancement factor, the trial court made reference to it as a factor in the context of prior criminal his tor y. Likewise, the

defendant has not complied with sentencing conditions involving

release into the com mun ity. Ev en application of the sole mitigatin

g factor arg

ued by the de

fendant, that his conduct did not threaten serious injury, would not change our view that the sentence of 11 months and 29 days, including 90 days of incar ceration with the balance on supervised probation, is entirely appropriate.

Accordingly, the judgment is affirmed.

_______________ ___________

___________

_ GARY R. WADE, PRESIDING JUDGE