# FILED September 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON SEPTEMBER 1997 SESSI ON
STATE OF TENNESSEE, ) ) No. 02-C-01- 9611-CC-00434 APPELLEE, ) ) Obion County v. ) ) W illiam B. Acree, Jr. , Judge CHARLIE MARSHALL FLOYD, ) ) (Sente ncing) APPELLA NT. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Joseph P. Atnip John Knox Walkup Distric t Public Defender Attorney Gen eral & Repor ter 111 Main Street 500 Charlotte A venue Dresden, TN 382 25 Nashvil le, TN 37243-0497 Georgia Bl ythe Felner Assistant Attorney Gener al 450 James Roberts on Parkway Nashvil le, TN 38261 Thomas A. Thomas Distric t Attorney General P. O. Box 218 Union City , TN 38261

OPINION FILE D: _____________________________

____ AFFIRMED Joe B. Jo nes, Pre siding Jud ge2 

### O P I N I O N
The appellant, Charlie M arshall Fl oyd (defendant), was conv icted of selling cocaine, a Class B felony , by a jur y of his peer

s. The tria l court found that the defendant was a multiple offender

and imposed a Rang e II sentence cons isting of confin ement for fifteen (15) years i n the Department of C orrection. In this Cour t, t he def endant contends the sentence imposed by t he trial cour t was excessive be ca use the court failed to ap ply mitigatingfactor (1), Tenn. Code Ann. § 40-35-113(1), namely, his criminal conduct neither caused nor threatened s erious bodil y injur y, when determiningthe length of the sentence within the appropriat e range. After a thorou gh review of the record, th e briefs submitted bythe parties, and t he law g overningthe issuepresented for review, it is the opinion of this Court that the judgment of the tr ial court s hould be affirmed. This Court hasconducted a de novo review of the record as required by Tenn. Code Ann. § 40-35-401(d). This Court has previously held that mitigatin g factor one (1) is not applicable where the defendant is conv icted of selli ng cocaine. State v. Keel , 882 S.W.2d 410, 422 (Tenn. Cri m. App.), per . app . denied (Tenn. 1994); State v. La rry D. Jon es , Davidson Coun ty No. 01-C-01-9112 -CR-00368, 1 992 WL 146719 (Tenn. Crim. App., Nashvil le, June 30, 1992), per . app . denied (Tenn. October 26, 199 2); State v. Charl es Fulkerson , Knox

County No . 03-C-01-1 101-CR-00032, 1992 WL 6881 (Tenn. Crim. App., Knoxvil le, January 21, 1992). However, assumin g arguendothat this factor is applicab le, the weight

which w ould be given to this factor would be negli gible. It would not b e sufficient to cause th e sentence to be re duced given the fact the defendant has sixteen pr ior convictions, ei g ht misdemeanor conv ictions, and e ight felony convicti ons. Some of the felony conv ict ions

aredru g-r

elat ed off ense s. F urt herm ore, the off ense was committed while the defendant was on probation for pr ior con vi ctions, and a pr ior community corrections sentence had be en revoked due to subsequent con victions. The trial cour

t found the defendant was a professional c riminal and his employ ment record was ske tchy. The trial court reached this conclusion ba sed upon the def endant’s sixteen convicti ons . In ad dition, the defen dant had a drug-related of fense pending in Obion County

when the sentencing heari ng was conducted.3 The trial cour

t did not abuse i ts discreti on by refusingto consider mitigatingfactor (1). T he co urt si mply f ollo wed exi stin g law.

______________________ ________________

_ _ JOE B. JONES, PRESID ING JUDGE CONCUR:

___________________________________ DAVID H. WELLES, JUDGE

___________________________________ JOE G. R ILEY, JUD GE