           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE

              STATE OF TENNESSEE v. JAMES MALCOM DAVIS

                 Direct Appeal from the Criminal Court for Wayne County
                          No. 11345 Stella L. Hargrove, Judge



                   No. M2000-00089-CCA-R3-CD - Decided June 30, 2000


The defendant appeals his sentence for driving under the influence first offense, a Class A
misdemeanor. He entered an open plea of guilty and received a sentence of 11 months and 29 days,
with 120 days to be served in confinement and the remainder to be served on supervised probation.
The defendant argues the trial court erred in requiring him to be confined for 120 days. The
judgment of the trial court is affirmed.

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

RILEY, J. delivered the opinion of the court, in which TIPTON, J. and GLENN, J. joined.

Claudia S. Jack, District Public Defender; and Robert H. Stovall, Jr., Assistant District Public
Defender, Columbia, Tennessee, for the appellant, James Malcom Davis.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe , Assistant Attorney General;
T. Michael Bottoms, District Attorney General; J. Douglas Dicus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION


        The defendant drove his car over an embankment. Approximately two hours later, his
vehicle was discovered and emergency personnel were dispatched to the scene. Tennessee Highway
Patrolman Thomas Kilpatrick testified that he observed numerous beer bottles at the scene, but was
unable to conduct a field sobriety test because emergency personnel were already preparing to
transport the defendant to the hospital. However, Trooper Kilpatrick followed the ambulance to the
hospital and obtained the defendant's permission to take blood and urine samples. The lab report
from the Tennessee Bureau of Investigation revealed the defendant's blood alcohol content was
.08%, and the urinalysis indicated the presence of five different drugs in the defendant's system,
including marijuana.

       The defendant was indicted for driving under the influence first offense and reckless driving.
He entered an open plea of guilty to driving under the influence and was sentenced to 11 months and
29 days with 120 days to be served in confinement and the remainder to be served on supervised
probation.

        At the sentencing hearing, the defendant claimed another person by the name of James
Malcom Davis committed some of the traffic offenses on his record. Furthermore, the defendant
asserted the drugs in his system were prescription drugs for back pain and claimed he had smoked
the marijuana a few weeks prior to the accident.

        In setting the defendant's sentence, the trial court found the defendant had an extensive record
of driving offenses spanning eight states, including two prior convictions for driving under the
influence and two convictions for driving on a revoked license. Furthermore, the trial court found
the defendant was not credible and that he previously failed to appear for trial in this matter. The
trial court determined the sentence was necessary to avoid depreciating the seriousness of the
offense.



                                    STANDARD OF REVIEW

        This Court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The burden
is upon the appealing party to show that the sentence is improper. Tenn. Code Ann. § 40-35-401(d)
Sentencing Commission Comments.


                                             ANALYSIS

        The defendant does not challenge the length of his sentence. However, he claims the trial
court inappropriately sentenced him to 120 days of confinement and requests that this court reduce
his confinement to 45 days.

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory but the trial court
is required to provide the defendant with a reasonable opportunity to be heard as to the length and
manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentencing is controlled
by Tenn. Code Ann. § 40-35-302, which provides in part that the trial court shall impose a specific
sentence consistent with the purposes and principles of the 1989 Criminal Sentencing Reform Act.
State v. Palmer, 902 S.W.2d 391, 394 (Tenn. 1995).

        Misdemeanor sentencing is designed to provide the trial court with continuing jurisdiction.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). Furthermore, the trial court has more
flexibility in misdemeanor sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d
271, 273 (Tenn. 1998).

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        In the instant case, the trial court found the defendant had an extensive history of convictions
for driving offenses, including two prior convictions for driving under the influence and two
convictions for driving on a revoked license. The prior record of the defendant justified the required
120 days of confinement.



                                          CONCLUSION

        We find the trial court appropriately applied the principles of sentencing to arrive at a proper
sentence. Thus, the judgment of the trial court is affirmed.




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