         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2003

                  STATE OF TENNESSEE v. JACKIE LEE GRAY

                   Direct Appeal from the Circuit Court for Maury County
                     No. 11992; 11993; 12096     Robert L. Jones, Judge



                   No. M2002-00802-CCA-R3-CD - Filed September 4, 2003


On January 28, 2002, the appellant, Jackie Lee Gray, pleaded guilty to two counts of misdemeanor
assault, one count of vandalism under $500, one count of public intoxication, and one count of
resisting arrest. The judgments in the technical record reflect that the appellant was ordered to serve
an effective sentence of six months incarcerated and six months on probation for his convictions.
On August 6, 2002, this court granted the appellant’s motion to late-file a transcript of the evidence.
On September 26, 2002, the Circuit Court of Maury County had not yet received the transcript and
therefore sent the technical record to the court. The appellant now brings this appeal claiming that
the trial court improperly ordered him to serve a portion of his sentence in jail. Because the
transcript of the sentencing hearing is not before this Court we have no choice but to affirm the
judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

William C. Barnes, Jr., Columbia, Tennessee, for appellant, Jackie Lee Gray.

Paul G. Summers, Attorney General & Reporter; Kim R. Helper, Assistant Attorney General; and
Mike Bottoms, District Attorney General, for appellee, State of Tennessee.

                                              OPINION

                                               Analysis

         In its brief the State notes that the appellant discusses the facts of the case and includes
citations to the record. However, despite this Court’s order granting the appellant’s motion to late-
file the transcript, it is not included in this record. Therefore, because the record of the dispositive
issues is incomplete, we must presume that the trial court’s decision is proper.
        When an appellant challenges his sentence, this Court should conduct a de novo review with
a presumption of correctness. See Tenn. Code Ann. § 40-35-401(d). Because there is no transcript
included in the record “the proper course of action is for the Court to sua sponte presume that the
trial court’s decision is correct when the record is insufficient to determine otherwise.” State v.
Kern, 996 S.W.2d 842 (Tenn. Crim. App. 1999); State v. Richardson, 875 S.W.2d 671, 674 (Tenn.
Crim. App. 1993); State v. Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App. 1987).

                                           Conclusion

       Based on the foregoing, the judgment of the trial court is AFFIRMED.




                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




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