### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs N

ovember 15, 2000 STATE OF TENNESSEE v. HAROLD M. BAYUK Direct Appeal from the Circuit Court for Hickman County No. 99-5083CR-I Timothy L. Easter, Judge

No. M2000-01654-CCA-R3-CD - Filed March 8, 2001

The Appellant, Harold M. Bayuk, was convicted by a Hickman County Circuit Court jury of one count of driving under the influence of an intoxicant and one count of driving on a revoked license. Following his conviction for DUI, the Appellant waived his right to jury sentencing

and agreed to submit the issue of enhanced punishment to the trial court. The trial court found the Appella

nt guilty of DUI, third o ffense, a nd sentenced him to eleven months twenty-nine days, w ith 150 days to be served in confinement. O

n appeal, the App

ellant argues t

hat the trial cour

t erred in sentencing him to serve 150 days instead of the statutory minimum of 120 day s. After review, we affi

rm th e judgment of the trial court

in part, vacate i

n part, and remand this case to the trial court for entry of an amended judgment of conviction. Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed in Part; Vacated in Part; Remanded. D AVID G. H AYES , J., delivered the opinion of the cour t, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. Gary M. Howell, Columbia, Tennessee, for the Appellant, Harold M. Bay uk. Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth B. Mar ney, Assistant Attorney General, and Lee Dr yer, Assistant District Attor ney Gen eral, for the Appellee, State of Tennessee. OPINION
I. Factual Backgr

ound The Appellant, Harold M. Bay uk, was c onvicted by a Hickman County Circuit Court jury of one count of driving under the influence and one count of driving on a revoked license. Following his conviction for DUI, the Appellant waived his right to have the jury sentence him and instead1 The record reflects that Count 3 of t he indictment alleging DUI, third offense, wa

s presented by t

he distric

t attorney to the grand jury, with t he grand jury indicting the Appellant f or DUI, third offense. Agai n, for ins tructional purposes, because DUI, third offense, does not constit ute a substantive

offense, no ac tion was req uired by the g rand jury. -2- submitted the issue of enhanced punishment to the trial court. The trial court found the Appellant guilt y of DUI, third offense, and sentenced him to eleven months twe nty- nin e days , wi th 1 50 d ays to serve. On appea

l, the Appellant ar

gues that the tri

al court erred i

n sentencing him

to serve 150 days instead of the statutory minimum of 120 day s. II. Analysis The Appellant bears the burden of demonstrating to this court why the sentence is improper. Sentencing Commission Comments, T ENN . C ODE A NN . § 40-35-401(d)(1997). To this end, “[w]hen a part y seek s ap pel lat e rev iew the re i s a d uty t o pr epar e a re cord whi ch co nve ys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal.” Statev. Ballard , 855 S.W.2d 557, 560 (Tenn. 1993). This court is precluded from considering an issue when the record is incomplete regarding that issue. Ballard , 855 S.W.2d at 561. In the absence of a complete r ecord, thiscourt must conclusively presume that the ruling of the trial court was correc t. State v. Gri ffis , 964 S.W.2d 577, 593 (Tenn. Crim. App. 1997). In the instant case, the Appellant failed to include a

transcript of the sentencing hearing for our review.

Therefore, we

must presume that the trial court correctly sentenced the Appellant. State v. Osborn , No. 03C01-980 3-CR00118 (Tenn. Crim.

App. at Knoxville, Mar. 13, 2000). Accordingly, we affirm the judgment of the trial court. Notwithst anding, we find it necessary to address an additional issue not raised by

either party upon appeal. First, we note that the Hickman County Grand Jury returned an indictment against the Appellant on the following thr

ee counts: (1) driving under the influence of an intoxicant; (2) driving on a revoked license; and (3) driving under the influence of an intoxicant, third offense. The jury subsequently

found the Appella

nt g uil ty of Counts 1 and 2 above and the trial judge found the Appellant guilty of Count 3. In effect, the Appellant was c onvi cte d of both DUI and DUI, third offen se, for the same incident, with accompanying judgments of conviction being entered for th e respective offenses. Moreover, we note that the sentences imposed in Counts 1 and 3 were ordered by the trial judge to be served consecutively

, resulting in a pr

obationary

period that is

not authorized under T ENN . C ODE A NN . § 40-35-303(c)(sentence may not exceed the statutory minimum time for the conviction offense). We find this to be plain error. See Tenn. R. Crim. P. 52(b). The Appellant should have been convicted of only one DU I offense as there is only one statutory violatio n for DUI, that being T ENN . C ODE A NN . § 55-10-401. The punishment for multiple DUI offenders is contained i n T ENN . C ODE A NN . § 55-10-403. This code provision constitutes enhanced punishment and is not a new or separate offense. 1 See also State v. Marbury , 908 S.W.2d 405, 407 (Tenn. Crim. App. 1 995). T ENN . C ODE A NN . § 55-10-403(g)(2) requires the prosecution to pr ovide notice to the

defendant when

prior DUI co

nvictions will be co

nsidered for pur

pose s o f enhancing hi s or her s entence. This notice requirement is met when the prosecution places the-3-

required information , such as the time, place, and state of any prior convictions, in the charg ing instrument. T ENN . C ODE A NN . § 55-10-403(g)(2). Once again, we emphasize that such information is u sed for enh ance men t pu rpo ses onl y.

CONCLUSION Based upon the forego

ing, we affirm t

he Appellant’s s entence but remand this case to the trial court for dismissal of Cou

nt 3. The Appellan

t’s jury con

viction for DUI

under Count 1 rema

ins. The judgmen t of conviction for Count 1 is to be amended to reflect the trial court’s imposition of enhanced punishment as a DUI, third offender.

___________________________________ DAVID G. HAYES, JUDGE