         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs October 30, 2007

                STATE OF TENNESSEE v. KARL DANIEL FORSS

                         Appeal from the Circuit Court for Cocke County
                              No. 9950    Rex Henry Ogle, Judge



                     No. E2007-01349-CCA-R3-CD - Filed January 30, 2008



D. KELLY THOMAS, JR., J., dissenting.


        I agree with the majority, for the reasons outlined in its opinion, that it was error for the trial
court to apply T.C.A. § 40-35-114(10) (2006) to enhance the defendant’s sentence in this case.
However, I respectfully disagree with the majority’s conclusion that the trial court did not consider
the mitigating factors proposed by the defendant. In my view, the sentencing hearing transcript
establishes that the trial court not only considered the mitigating factors urged by the defendant, it
also applied them. The record also establishes that the defendant had a record of illegal drug use,
four DUI convictions, and a theft conviction. Thus, the trial court’s conclusion, after weighing the
enhancing and mitigating factors, that the enhancement factors greatly outweighed the mitigating
factors was supported by the record.

        In light of these conclusions, coupled with the advisory nature of Tennessee’s revised
Criminal Sentencing Reform Act, which designates the use of enhancement factors to be non-binding
(see T.C.A. § 40-35-114 (2006)) and designates the guidelines for imposing a sentence within a
range of punishment to be non-binding (see T.C.A. § 40-35-210(c) (2006)), I would find the trial
court’s error to be harmless and affirm the trial court’s imposed sentence of six years in the
Department of Correction. Therefore, I respectfully dissent.




                                                                 _____________________________
                                                                 D. KELLY THOMAS, JR., JUDGE
