State v. Steve A. Baggett

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 May 4, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9710-CC-00464 ) Appellee, ) ) ) MONTGOM ERY COUNTY VS. ) ) HON . JOHN H. GAS AWAY III, STEVE A. BAGGETT, ) JUDGE ) Appe llant. ) (Misdemeanor Sentencing)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF MONTGOMERY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

PETER M. OLSON JOHN KNOX WALKUP 114 Franklin Street Attorney General and Reporter Clarksville, TN 37040 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

JOHN CARNEY District Attorney General

WILLIAM CLOUD Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Defendant, Steve A. Bagg ett, appeals his se ntence of ten d ays incarceration followed by six months probation for reckless driving, a class B misdem eanor. Defendant entered a plea of guilty to one count of reckless driving, with the length and manner of service of the sentence left to the discretion of the trial court. At that time, the State dismissed one count of DUI and one count of refusal to submit to alcohol testing. Following a sentencing hearin g, the trial cou rt sente nced Defendan t to ten d ays inc arcera tion an d six months of probation. From this order, Defendant timely appeals.1

Defendant first contends that the trial court erred by failing to require and consider a prese ntence report. Presentence reports are not mandatory for misdemeanor sentencing. Tenn. Code Ann. § 40-35-205(a) (“Upon acceptance of a guilty plea . . . the court shall, in the case of a felony, and may, in the case of a misdemeanor, direct the presentence service officer to make a presentence investigation and report . . . .”). At the sentencing hearing, Defendant was afforded “the opportunity to be heard and present evidence relevant to the sentencing” in accordance with Te nnes see C ode A nnota ted § 4 0-35- 209(b ). This issue lac ks me rit.

1 At the time appellate briefs were submitted, the sentencing hearing in this case had not yet been transcribed. Defendant moved this Court for the right to supplement his brief following access to the transcript, and he expressed his intention to raise additional issues. This Court granted Defendant’s motion and informed him upon receipt of the sentencing hearing transcript. The Court received no supplementation by Defendant.

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Defendant next argues (1) that he is entitled to the presumptive minimum sentence allowed by law; and (2) that because the offense of reckless driving has no minim um s enten ce pre scribe d by the legisla ture, the trial court should have permitted his entire sentenc e to be served on probation, with no incarceration. We disagree , and we affirm the s entenc e ordere d by the trial c ourt.

Defen dant, a 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. A pp. 199 6); State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. A pp. 199 5); State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. A pp. 199 5); State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 19 95); 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 p ractice is to make findings on the record when fixing a percentage of a defenda nt’s se ntenc e to be served in incarceration, a trial court need on ly consider the principles of sentencing and enhancement and m itigating facto rs in order to com ply with the legislative mandates of the misdemeanor sentencing statute.

Id. at 274.

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Our review of the sentencing hearing transcript reveals that Defendant was previo usly convicted of possession of cocaine for resale. No relevant mitigation was offered b y Defen dant. 2 The prior felony drug conviction supports a sentence which includes incarceration. Therefore, we find no reversible error in the senten ce ma ndated by the trial co urt.

Defe ndan t’s sentence o f ten days incarceration followed by six months probation for the offense of reckless driving is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

2 Defendant offered two witnesses who testified (1) that they did not believe Defendant was intoxicated at the time of the offense, and (2) that they considered his actions of reckless driving to be justified due to passion.

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