            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON                   FILED
                            DECEMBER 1998 SESSION



STATE OF TENNESSEE                 )                               May 27, 1999
                                   ) C.C.A. No. 02C01-9805-CR-00129
              Appellee,            )
                                   ) Shelby County
V.                                 )
                                                               Cecil Crowson, Jr.
                                   ) Honorable W. Fred Axley, Judge
                                   )
                                                             Appellate Court Clerk
STANLEY O. ABELL,                  ) (Disorderly Conduct, Assault)
                                   )
              Appellant.           )




                               CONCURRING OPINION

              I concur with my colleagues in their determination that the judgment

should be affirmed. I differ only with regard to the standards utilized by trial courts

for sentencing on misdemeanor convictions.



              Initially, I would point out a conflict in some of the reported cases from

this court as to whether misdemeanants are entitled to the presumption of

favorability for alternative sentencing. In State v. Gennoe, 851 S.W.2d 833, 837

(Tenn. Crim. App. 1992), this court ruled as follows:

              Because especially mitigated standard offenders
              convicted of Class C, D, or E felonies are presumed to
              be favorable candidates for alternative sentencing, the
              same presumption would logically apply to
              misdemeanors.

This ruling was followed in State v. Boyd, 925 S.W.2d 235, 245 (Tenn. Crim. App.

1995). In State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995),

however, a panel of this court ruled that "the presumption is limited in scope to an

accused who is convicted of a Class C, D, or E felony. It does not apply to an
accused convicted of a misdemeanor." Later, and without expressly overruling the

several cases which conflict with the ruling in Williams, our supreme court may have

indicated a preference for the view espoused by the majority. State v. Troutman,

979 S.W.2d 271 (Tenn. 1998). In Troutman, our supreme court, in its determination

that the 1989 Act required trial courts to make findings of fact only in felony

sentencing, observed that "had the legislature intended this practice in

misdemeanor sentencing, it could have so stated." Id. The high court reasoned that

simply because the sentencing statute imposes certain rules in felony cases, those

rules do not apply to misdemeanor cases, unless the statute expressly so provides.



              Regardless as to whether the favorable presumption for probation

applies, the eleven-month, twenty-nine day sentence appears to be within reason

under these particular circumstances. The lack of candor on the part of the

defendant and his failure to take responsibility for his actions are proper grounds for

the denial of alternative sentencing or immediate probation. Thus a jail sentence

was warranted. Because the incident took place in a public school and there was a

significant risk to others, I concur with the imposition of a maximum sentence. That

does not necessarily prevent the defendant from seeking relief after the service of a

portion of the sentence.



                                          __________________________________
                                          Gary R. Wade, Presiding Judge
