              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                      FILED
                               JUNE 1998 SESSION
                                                                     October 6, 1998

                                                                    Cecil Crowson, Jr.
                                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,               )
                                  )
             Appellee,            )      No. 03C01-9707-CR-00305
                                  )
                                  )      Blount County
v.                                )
                                  )      Honorable Phyllis Miller, Judge
                                  )
RICHARD T. SMILEY,                )      (Assault)
                                  )
             Appellant.           )



                                 DISSENTING OPINION



             I respectfully dissent. I would reverse the conviction and grant a new trial

because of the trial court’s failure to instruct the jury on the Class B misdemeanor

assault of knowingly causing contact with the victim that a reasonable person would

regard as extremely offensive or provocative. I believe such an assault to be a lesser

included offense of the aggravated assault charged in the indictment, and I believe that

stabbing the victim in the hand is contact that is reasonably regarded to be extremely

offensive or provocative.



             Also, I disagree with my colleagues’ view of the propriety of the trial

court’s use of a “preference” to start in midrange in misdemeanor sentencing with

apparent adjustment up or down depending upon the existence of enhancement or

mitigating factors. They rightfully note that the 1989 Sentencing Reform Act does not

specify where in the range the trial court should start the process of sentencing

misdemeanants. However, I believe they are mistaken when they conclude that this

means that trial courts have the discretion to start at midrange.
              I believe that State v. Moss, 727 S.W.2d 229 (Tenn. 1986), is directly on

point. In Moss, a second degree murder case, the trial court noted that the 1982

Sentencing Reform Act did not say anything about a presumptive starting point and

determined that it was appropriate for it to start its sentencing analysis at the half-way

point in the range. On appeal, this court concluded that the 1982 Act embodied a policy

of the starting point being the minimum sentence for the range. However, our supreme

court rejected both the trial court’s and this court’s starting points, stating that the Act

contemplates “that sentences should be considered on a case-by-case basis and that

the sentencing court should exercise guided discretion within the terms of the Act,”

without adopting any presumptive sentencing method. Id. at 238.



              The principles and purposes of the 1982 Act upon which Moss was based

are essentially the same that exist in the 1989 Act and which apply to misdemeanor

sentencing. In the present case, the trial court essentially started at six months and

increased the sentence to eleven months and twenty-nine days. We have no way of

knowing what the sentence would be in consideration of the relevant enhancement and

mitigating factors and the principles and purposes of the 1989 Act but without a

midrange starting point. A resentencing should occur.



                                                   _____________________________
                                                   Joseph M. Tipton, Judge




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