          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                        FILED
                                  AT KNOXVILLE                        August 27, 1999

                                                                     Cecil Crowson, Jr.
                               MAY 1999 SESSION                      Appellate C ourt
                                                                         Clerk



STATE OF TENNESSEE,                )
                                   )
       Appellee,                   )       C.C.A. No. 03C01-9803-CR-00100
                                   )
v.                                 )       Hamilton County
                                   )
TRACY LEBRON VICK,                 )       Honorable Stephen M. Bevil, Judge
                                   )
       Appellant,                  )       (Sentencing)



                             CONCURRING OPINION


              I fully concur in the opinion of the majority and offer this separate

opinion solely for the purposes of elucidating the use of the mid-range starting point

for establishing the length of the defendant’s sentence.



              Prior to July 1, 1995, the sentencing law prescribed the minimum

sentence in the range as the presumptive sentence. Tenn. Code Ann. § 40-35-

210(c), (d) (1990). Effective on that date, Code section 40-35-210(c) was amended

to provide that the presumptive sentence for Class A felonies “shall be the midpoint

of the range if there are no enhancement or mitigating factors.” Tenn. Pub. Acts ch.

493, §1 (effective July 1, 1995). Subsection (e), which provided that when there are

enhancement and mitigating factors “the court must start at the minimum sentence

in the range,” was not amended in 1995.          However, effective May 7, 1998,

subsections (d) and (e) were amended to provide that the midpoint in the range

would be the starting point for establishing the length of a sentence for a Class A

felony offense. Tenn. Pub. Acts ch. 914, § 2 (effective May 7, 1998). Thus, for

Class A felony offenses committed between July 1, 1995 and May 7, 1998, the

anomaly prevailed that the “presumptive” sentence was the midpoint in the

sentencing range, although the starting point for setting the sentence when both

enhancement and mitigating factors were present was the minimum sentence in the

range. The offense in the present case was committed on September 20, 1996 and
falls within that time period.



              For cases such as the one at bar which arose during this time period,

this court resolved the anomaly in State v. Chance, 952 S.W.2d 848 (Tenn. Crim.

App. 1997). We held that the presumptive sentence or starting point for post-1995

amendment Class A felonies, including cases which involved both enhancement

and mitigating factors, is the midpoint in the applicable sentencing range. Chance,

952 S.W.2d at 850-51. Thus, despite the language that appeared in subsection (e)

of Code section 40-35-210 on September 20, 1996, the applicable starting point is

the midpoint, and in his brief, the defendant concedes as much.



              With this explanation, I fully concur in the majority’s opinion.



                                          ________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE
