        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                           MAY, 1997 SESSION
                                                    September 9, 1997

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              )    No. 03C01-9608-CC-00305
           Appellee,          )
                              )
vs.                           )    Bradley County
                              )
ERWIN KEITH TINSLEY,          )    Honorable R. Steven Bebb, Judge
                              )
           Appellant.         )    (Evading arrest, reckless driving,
                              )    speeding, driving with a revoked
                              )    license)



FOR THE APPELLANT:                 FOR THE APPELLEE:

D. MITCHELL BRYANT                 JOHN KNOX WALKUP
JENNE, SCOTT & BRYANT              Attorney General & Reporter
260 N. Ocoee St.
P.O. Box 161                       SARAH M. BRANCH
Cleveland, TN 37364-0161           Counsel for the State
                                   Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   JERRY N. ESTES
                                   District Attorney General
                                   203 Madison Ave.
                                   P.O. Box 647
                                   Athens, TN 37371

                                   REBBLE JOHNSON
                                   Assistant District Attorney General
                                   93 Ocoee St. N. # 200
                                   P.O. Box 1351
                                   Cleveland, TN 37364


OPINION FILED: ____________________


AFFIRMED

CURWOOD WITT
JUDGE
                                     OPINION



              The defendant, Erwin Keith Tinsely, was convicted in a jury trial in the

Bradley County Criminal Court of reckless driving and evading arrest, both Class A

misdemeanors. The jury also convicted him of driving on a revoked license, a Class

B misdemeanor, and of speeding, a Class C misdemeanor. The trial court ordered

him to serve 75% of an effective sentence of eleven months and twenty-nine days

and to pay fines in the amount of $930.00. The defendant appeals pursuant to Rule

3, Tennessee Rules of Appellate Procedure, contending that he should be granted

a new trial as the state failed to record his earlier trial and that his sentences are

excessive. We disagree with the defendant's claims and affirm the trial court.



              The record on appeal contains no transcript of the trial in this matter

nor does it contain a statement of the evidence as described in Rule 24(c),

Tennessee Rules of Appellate Procedure. We glean this brief summary of the facts

from the “technical” record provided by the Court Clerk of Bradley County.



              On February 16, 1995, Office Wayne White stopped the defendant for

driving 65 miles per hour in a 45 mile per hour zone, and the defendant pulled into

the lot of a car dealership. Because Officer White believed the defendant acted

suspiciously, Officer White called a second officer to the scene. While he was

awaiting the arrival of the backup officer, White checked the defendant’s driver’s

license and discovered that it had been revoked. At some point, the two

officers asked the defendant to turn off the car. The defendant, however, put the

car into drive and accelerated away. The car jumped over a large curb and entered

the street. The defendant turned right at a red light without stopping and sped away

from the officers.


                                          2
              The defendant’s first trial ended when the jury was unable to reach a

verdict on December 5, 1995, and the case was reheard on March 7, 1996. At the

second trial, the jury found the defendant guilty of reckless driving, evading arrest,

driving on a revoked license, and speeding. The state filed a notice of intent to seek

enhanced punishment on the basis of the defendant’s two prior convictions for sale

of cocaine in Georgia. Upon conviction, the trial court sentenced him to the

maximum sentences of six months for reckless driving, eleven months and twenty-

nine days for evading arrest, six months for driving on a revoked license, and thirty

days for speeding. All sentences run concurrently, and the defendant must serve

the maximum rate of 75% of his sentence before he is eligible for certain release

programs.     The defendant complains that the trial judge acted arbitrarily and

improperly in ordering him to serve the maximum sentence allowed by law for each

conviction.



              When an accused challenges the length, range, or manner of service

of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d)(Supp. 1996). This presumption is "conditioned upon the

affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991). The burden for showing that the sentence is improper is

on the appealing party. Tenn. Code Ann. § 40-35-210 sentencing commission

comments.



              A misdemeanant, unlike the felon, is not entitled to the presumption

of a minimum sentence. State v. Randall C. Conner, No. 03C01-9401-CR-00024,

slip op. at 6 (Tenn. Crim. App., Knoxville, Aug. 12, 1994); State v. Bernell B.


                                          3
Lawson, No. 63, slip op. at 7 (Tenn. Crim. App., Knoxville, May 23, 1991). After

imposing a determinate sentence consistent with the purposes and principles of our

sentencing law, the trial court must determine the percentage of the sentence

which the misdemeanant must serve before becoming eligible for certain release

programs. Tenn. Code Ann. §§ 40-35-211; 40-35-302(b),(d). 1 In determining the

percentage of the sentence, the court must consider enhancement and mitigating

factors as well as the legislative purposes and principles related to sentencing.

Tenn. Code Ann. § 40-35-302(d); State v. Palmer, 902 S.W.2d 391, 393-94

(Tenn.1995); State v. Gilboy, 857 S.W.2d 884, 888-889 (Tenn. Crim. App. 1993).



               In this case, there is no transcript of the trial or the sentencing

proceedings. We do not know what factors the trial court considered in arriving at

its sentencing determinations. It is the appellant’s duty to file a record of the

proceedings that presents a fair, accurate, and complete account of what transpired

below with respect to the issues on appeal. Tenn. R. App. P. 24(b); State v. Ballard,

855 S.W.2d 557, 560-561 (Tenn. 1993). In the absence of such a record, this court

is bound by the conclusive presumption that the trial court acted correctly. State v.

Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). We are precluded from

considering an issue where the record does not contain a complete transcript or

statement of what transpired in the trial court with respect to that issue.2 Brian M.


       1
              Generally, a percentage of not greater than 75% of the sentence
should be fixed for a misdemeanor offender; however, a DUI offender may be
required to serve the full 100% of his sentence. Palmer, 902 S.W.2d 391,
393-94 (Tenn. 1995); Tenn. Code Ann. § 40-35-302(d).
       2
                We note that the technical record contains evidence demonstrating
that defendant has a significant history of prior criminal convictions and behavior,
Tenn. Code Ann. § 40-35-114(1), and that he had no hesitation in committing a
crime when the risk to human life was high. Tenn. Code Ann. § 40-35-114(10).
Although the second factor may not be used to enhance the conviction for
reckless driving, it was surely relevant to the offenses of evading arrest, driving
on a revoked license, and speeding. These factors alone may well be sufficient
to justify the service of 75% of the defendant’s sentence.

                                         4
Herman v. State, No. 03C01-9601-CR-00035, slip op. at 12 (Tenn. Crim. App.,

Knoxville, May 7, 1997).



              The defendant argues that the state had a duty to see that his trial was

properly recorded and that, since no record was made, this court should set aside

the verdict and grant him a new trial. To support this argument the defendant

mistakenly relies upon Tennessee Code Annotated section 40-14-307 which

requires that “a designated reporter shall attend every stage of each criminal case

before the court and shall record verbatim . . . all proceedings had in open court and

such other proceedings as the judge may direct.” Tenn. Code Ann. § 40-14-

307(a)(1990)(emphasis added).



              The defendant, however, has failed to note Tennessee Code

Annotated section 40-14-301 which defines “criminal case” as “the trial of any

criminal offense which is punishable by confinement in the state penitentiary.”

Tenn. Code Ann. § 40-14-301(2)(1990). The defendant was charged with four

misdemeanors none of which were punishable by greater than eleven months and

twenty-nine days in the county jail or workhouse. See Tenn. Code Ann. §§ 40-20-

103, 40-35-111 (1990). Thus, he has no right under Tennessee law to a verbatim

transcript of the proceedings in the trial court.   State v. Larry D. Swafford, No.

03C01-9502-CR-00046, slip op. at 3 (Tenn. Crim. App., Knoxville, Nov. 16, 1995),

perm. to appeal denied (Tenn. 1996); see also State v. Hammond, 638 S.W.2d

433, 435 (Tenn. Crim. App. 1982); State v. Doyle Baugus, No. 03C01-9103-CR-85,

slip op. at 2 (Tenn. Crim. App., Knoxville, Sept. 17, 1991).




                                          5
               The defendant could have followed the procedures for preparing a

statement of the evidence pursuant to Tennessee Rules of Appellate Procedure 24,

but he did not.3 Given the deficient record on appeal, we must presume that the

rulings of the trial court were correct. Accordingly, we affirm the sentences imposed

by the trial court.

                                           ________________________
                                           CURWOOD WITT, Judge



CONCUR:



___________________________
JOE B. JONES, Presiding Judge

___________________________
JOSEPH M. TIPTON, Judge




       3
             Rule 24(c) of the Tennessee Rules of Appellate Procedure
contains the procedures to be followed when a verbatim transcript is unavailable.
The rule provides that

       1.      An appellant, using the best available means
               including his recollection, shall prepare a fair,
               accurate and complete account of what transpired
               below with respect to those issues that are the bases
               of the appeal;
       2.      The statement, certified by the appellant or his
               counsel as an accurate account of the proceedings,
               must be filed with the clerk of the trial court within 90
               days after filing the notice of appeal.
       3.      Upon filing the statement, the appellant shall
               simultaneously serve notice of the filing on the
               appellee, along with a brief declaration of the issues
               he intends to present on appeal. Proof of service
               must be filed with the trial court.
       4.      The appellee then has fifteen days to file any
               objections to the statement prepared by the appellant.
       5.      The trial court resolves any differences between the
               parties regarding the statement.

Tenn. R. App. P. 24(c).

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