FILED

April 20, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9805-CR-00229

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. SETH NORMAN,

CLINTON E. KEY, ) JUDGE

)

Appellant. ) (Misdemeanor Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MARY GRIFFIN JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

1202 Stahlman Building

Nashville, TN 37201 CLINTON J. MORGAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

VICTOR S. JOHNSON

District Attorney General

PAMELA ANDERSON

Assistant District Attorney General

Washington Square, Suite 500

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
1

 The State argues that the Statement of Evidence filed by Defendant following his

Notice of Appeal is insufficient under Tennessee Rule of Appellate Procedure 24(c). We find

that the Statement was filed with the trial court within the 90-day period as required. Defendant

hand-delivered a copy of the Statement to the State. No objections by the State appear in the

record; and pursuant to Tennessee Rule of Appellate Procedure 24(f), the Statement became

final upon inaction by the trial court. 

Although, as the State argues, the Statement has not been specifically “certified” by

Defendant or Defendant’s counsel, we find (1) that Defendant has substantially complied with

the requirements of Rule 24, and (2) that the proper place for the State’s objections was in the

trial court, as the trial court was the proper arbiter of any factual disputes between the State

and Defendant. We consider the Statement of Evidence in lieu of a transcript of the evidence.

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OPINION

The Defendant, Clinton E. Key, appeals his sentences of thirty days for

disorderly conduct; six months for resisting arrest; thirty days for criminal

trespass; and eleven m onths, twenty-nine days for assault. Following a jury trial,

the trial court ordered Defendant to serve the sentences consecutively in the

county jail, with release eligibility at seventy-five percent. Defendant argues that

the trial court erred by imposing the maximum sentence on each conviction and

by ordering the sentences served consecutively. 

Although the record does not contain a transcript of the evidence

presented to the jury during the trial, the Defendant submitted a statement of the

evidence.1

 These crimes were the result of two separate confrontations with

police officers—one in September of 1996 and the other in February of 1997. On

both occasions, the Defendant apparently resisted the efforts of police officers to

take him into custody.

Defendant, a multiple misdemeanant, is not entitled to the presumptive

minimum sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App.

1997); State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996); State v.
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Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995); State v. Seaton, 914

S.W.2d 129, 133 (Tenn. Crim. App. 1995); State v. Williams, 914 S.W.2d 940,

949 (Tenn. Crim. App. 1995); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.

App. 1994).

In misdemeanor sentencing, the trial court retains the authority to place the

defendant on probation either immediately or after a time of periodic or

continuous confinement. Tenn. Code Ann. § 40-35-302(e). Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and

a great deal of flexibility. Furthermore, our supreme court recently stated in State

v. Troutman, 979 S.W.2d 271 (Tenn. 1998), that the trial court’s findings on the

issue of incarceration need not appear in the record:

[W]hile the better practice is to make findings on the record when

fixing a percentage of a defendant’s sentence to be served in

incarceration, a trial court need only consider the principles of

sentencing and enhancement and mitigating factors in order to

comply with the legislative mandates of the misdemeanor

sentencing statute.

Id. at 274. 

With respect to consecutive sentencing, Tennessee Code Annotated § 40-

35-115 provides that the trial court may order multiple sentences to run

consecutively if the “defendant is an offender whose record of criminal activity is

extensive.” Tenn. Code Ann. § 40-35-115(b)(2).

At the Defendant’s sentencing hearing, the only proffered mitigating proof

relevant to sentencing was Defendant’s testimony that he has “turned over a new

leaf” by committing misdemeanors rather than “grand felonies.” The trial court
2

 Defendant was convicted twice for burglary, once in 1973 and once in 1985.

3

 Defendant has been convicted twice for driving on a revoked or suspended license,

once for possession of stolen property, once for possession of drug paraphernalia, once for

disorderly conduct, once for resisting a stop and frisk, twice for traffic offenses, once for

criminal trespass, once for reckless endangerment, once for public intoxication, twice for

shoplifting, three times for possession of drugs, twice for disturbing the peace, and once for a

weapons offense. 

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commented on its consideration of Defendant’s prior record of criminal activity

contained in the presentence report, which includes two felony convictions,2

nineteen misdemeanor convictions,3 and arrests for twenty-eight additional

counts not resulting in convictions. The report also reflects that a prior sentence

of probation for his first burglary was revoked. At the sentencing hearing, the

Defendant demonstrated neither remorse nor potential for rehabilitation, and he

in fact suggested the police officers should be reprimanded for bringing the

charges against him.

We find the foregoing evidence sufficient to support both the length and

manner of service of Defendant’s sentences for disorderly conduct, resisting

arrest, criminal trespass, and assault. We affirm the sentences ordered by the

trial court. 

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE