         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 20, 2001

              STATE OF TENNESSEE v. JEFFREY SCOTT PETTY

                  Direct Appeal from the Circuit Court for Bedford County
                              No. 14658    Lee Russell, Judge


                     No. M2000-01739-CCA-R3-CD - Filed July 10, 2001


        The Appellant, Jeffrey Scott Petty, was indicted by a Bedford County Grand Jury for one
count of driving under the influence. On May 30, 2000, a jury convicted the Appellant of DUI, first
offense, a class A misdemeanor. On that same day, the trial court sentenced the Appellant to eleven
months, twenty-nine days, all suspended except for thirty days incarceration. The trial court further
ordered that the thirty days be served periodically on weekends. On appeal, the Appellant raises one
issue for our review: Whether the trial court properly ordered the Appellant to serve thirty days of
his eleven month, twenty-nine day sentence in periodic incarceration. Upon review, we find no
error. Thus, the judgment of the Bedford County Circuit Court is affirmed.


                Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL , J., and L.
T. LAFFERTY, SP . J., joined.

Robert L. Marlow, Shelbyville, Tennessee, for the Appellant, Jeffrey Scott Petty.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.
Ryan, Assistant Attorney General, and Michael Randles, Assistant District Attorney General, for the
Appellee, State of Tennessee.


                                            OPINION

                                           Background

        On July 4, 1999, Shelbyville police officer, Cody King, observed the Appellant driving in
a reckless manner. Although the officer used his siren and lights in an attempt to get the Appellant
to stop, the Appellant drove at speeds exceeding 78 m.p.h. down a busy street in Shelbyville before
eventually pulling over. Upon approaching the Appellant’s vehicle, Officer King smelled a strong
odor of alcohol and noticed the Appellant’s speech was slurred. Officer King further observed that
the Appellant was unsteady on his feet during the field sobriety tests. The Appellant was transported
to the police department where he refused to submit to a breathalyser test. Based upon these facts,
he was convicted of driving under the influence, first offense.

                                               Analysis

       The Appellant contends that the trial court’s imposition of a thirty-day period of confinement
is excessive and that he should have received the minimum sentence of forty-eight hours
incarceration. In addressing the Appellant's challenge, we are mindful that our de novo review is
conditioned with the presumption that the sentencing determination of the trial court is correct. See
Tenn. Code Ann. § 40-35-401(d). Moreover, the Appellant bears the burden of establishing that the
sentence imposed by the trial court is improper. Sentencing Commission Comments, Tenn. Code
Ann. § 40-35-401(d).

        Our legislature has provided that a defendant convicted of first offense DUI "shall be
confined . . . for not less than forty-eight hours nor more than eleven months and twenty-nine days."
Tenn. Code Ann. § 55-10-403(a)(1). Furthermore, "all persons sentenced under subsection (a) shall,
in addition to the service of at least the minimum sentence, be required to serve the difference
between the time actually served and the maximum sentence on probation." Tenn. Code Ann. §
55-10-403(c). In effect, the DUI statute mandates a maximum sentence for a DUI conviction with
the only function of the trial court being to determine what period above the minimum period of
incarceration established by statute, if any, is to be suspended. Tenn. Code Ann. § 40-35-302(d); see
State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998).

        In the present case, the Appellant contends the trial court erred by ordering him to serve thirty
days of his eleven month, twenty-nine day sentence in periodic incarceration. Our statutory
sentencing scheme is designed to provide the trial court with continuing jurisdiction in the
misdemeanor case and a wide latitude of flexibility. In imposing a misdemeanor sentence, the trial
court is required to impose a sentence consistent with the purposes and principles of the Sentencing
Reform Act of 1989. Tenn. Code Ann. § 40-35-302(b). The misdemeanant, unlike the felon, is not
entitled to the presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn.
Crim. App.1994). In misdemeanor sentencing, the trial court should consider the nature and
circumstances of the criminal conduct involved. See Tenn. Code Ann. § 40-35-102(1)(seriousness
of the offense) and § 40-35-103(1)(b). Moreover, our sentencing law permits consideration of the
defendant’s prior criminal history in arriving at the appropriate sentence. See generally Tenn. Code
Ann. § 40-35-102(3)(b) and § 40-35-103(1)(2).
        The Appellant contends that his thirty-day period of incarceration is excessive as it was based
upon the trial court’s application of an improper enhancing factor, namely that his actions
endangered the safety of others. At sentencing, the trial court considered the following factors:

        Some of the concerns I have: Number One, the record of other involvement in
        criminal activity that we’ve heard about. The concern I have is the fact that this
        occurred on what’s without a doubt the busiest street in Shelbyville in Bedford


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         County. Certainly with the disregard for the safety of other folks involved in driving
         intoxicated on that particular street, it gives me a lot of concern in this situation. I
         don’t think it’s a case for the statutory minimum.

Prior to his arrest for DUI, the Appellant, a former Shelbyville police officer, had engaged in
criminal conduct which resulted in federal convictions for drug violations.1 As acknowledged by
the Appellant, the trial court properly considered the Appellant’s past criminal history. See
generally Tenn. Code Ann. § 40-35-102(3)(b) and § 40-35-103(1)(2). Additionally, the trial court
properly considered the circumstances of the offense in finding that the Appellant’s actions
endangered the safety and lives of others. See Tenn. Code Ann. § 40-35-102(1) and § 40-35-
103(1)(b). We also note that the trial court accommodated the Appellant when imposing the term
of incarceration by permitting confinement to be served periodically on “off-duty” weekends so that
the Appellant could fulfill his National Guard and employment obligations.

       Upon de novo review, and in observance of the less stringent procedures attached to
misdemeanor sentencing, we cannot conclude that the trial court's imposition of a thirty-day period
of confinement was improper. Accordingly, the judgment of the trial court is affirmed.




                                                         __________________________________________
                                                         DAVID G. HAYES, JUDGE




         1
           On March 24, 2000, the Appe llant pled guilty in the United States District Court, Eastern District of Tennessee,
to the federa l offenses of (1) possession with the intent to distrib ute marijuan a; and (2) p ossession o f marijuana.

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