FILED

September 19, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, )

) No. 02-C-01-9611-CC-00434

APPELLEE, )

) Obion County

v. )

) William B. Acree, Jr., Judge

CHARLIE MARSHALL FLOYD, )

) (Sentencing)

APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

Joseph P. Atnip John Knox Walkup

District Public Defender Attorney General & Reporter

111 Main Street 500 Charlotte Avenue

Dresden, TN 38225 Nashville, TN 37243-0497

Georgia Blythe Felner

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 38261

Thomas A. Thomas

District Attorney General

P. O. Box 218

Union City, TN 38261

OPINION FILED: _________________________________

AFFIRMED

Joe B. Jones, Presiding Judge
2

O P I N I O N

The appellant, Charlie Marshall Floyd (defendant), was convicted of selling cocaine,

a Class B felony, by a jury of his peers. The trial court found that the defendant was a

multiple offender and imposed a Range II sentence consisting of confinement for fifteen

(15) years in the Department of Correction. In this Court, the defendant contends the

sentence imposed by the trial court was excessive because the court failed to apply

mitigating factor (1), Tenn. Code Ann. § 40-35-113(1), namely, his criminal conduct neither

caused nor threatened serious bodily injury, when determining the length of the sentence

within the appropriate range. After a thorough review of the record, the briefs submitted

by the parties, and the law governing the issue presented for review, it is the opinion of this

Court that the judgment of the trial court should be affirmed.

This Court has conducted a de novo review of the record as required by Tenn. Code

Ann. § 40-35-401(d). This Court has previously held that mitigating factor one (1) is not

applicable where the defendant is convicted of selling cocaine. State v. Keel, 882 S.W.2d

410, 422 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Larry D. Jones,

Davidson County No. 01-C-01-9112-CR-00368, 1992 WL 146719 (Tenn. Crim. App.,

Nashville, June 30, 1992), per. app. denied (Tenn. October 26, 1992); State v. Charles

Fulkerson, Knox County No. 03-C-01-1101-CR-00032, 1992 WL 6881 (Tenn. Crim. App.,

Knoxville, January 21, 1992). However, assuming arguendo that this factor is applicable,

the weight which would be given to this factor would be negligible. It would not be sufficient

to cause the sentence to be reduced given the fact the defendant has sixteen prior

convictions, eight misdemeanor convictions, and eight felony convictions. Some of the

felony convictions are drug-related offenses. Furthermore, the offense was committed

while the defendant was on probation for prior convictions, and a prior community

corrections sentence had been revoked due to subsequent convictions.

The trial court found the defendant was a professional criminal and his employment

record was sketchy. The trial court reached this conclusion based upon the defendant’s

sixteen convictions. In addition, the defendant had a drug-related offense pending in

Obion County when the sentencing hearing was conducted.
3

The trial court did not abuse its discretion by refusing to consider mitigating factor

(1). The court simply followed existing law.

________________________________________

 JOE B. JONES, PRESIDING JUDGE

CONCUR:

___________________________________

DAVID H. WELLES, JUDGE

___________________________________

 JOE G. RILEY, JUDGE