         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 23, 2001

                STATE OF TENNESSEE v. WILLIAM P. BROOKS

                   Direct Appeal from the Circuit Court for Blount County
                          No. C-11807 D. Kelly Thomas, Jr., Judge



                                  No. E2000-00555-CCA-R3-CD
                                         March 22, 2001


The defendant, William P. Brooks, was convicted of driving on a revoked license, third offense, a
Class A misdemeanor. The trial court imposed a sentence of 11 months and 29 days, requiring 90
days to be served in jail and the balance to be served on supervised probation. In this appeal of right,
the defendant argues that the trial court erred by refusing to suppress evidence and by imposing an
excessive sentence. The judgment of the trial court is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
NORMA MCGEE OGLE , JJ., joined.

Julie A. Rice, Contract Appellate Defender, Knoxville, Tennessee, and Mack Garner, District Public
Defender, Maryville, Tennessee, for the appellant, William P. Brooks.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Assistant Attorney General;
and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee.



                                              OPINION

        The state and the defense entered a written stipulation of proof which established the basis
for the conviction. On October 18, 1998, Maryville Police Officer Eddie Davis, while on routine
patrol, made a random check of the license plate on a vehicle driven by the defendant. Upon
determining that the license was registered to another vehicle, Officer Davis stopped the defendant
for violation of the registration law. Upon being presented with the driver's license information
offered by the defendant, Officer Davis determined that the license had been revoked based upon a
conviction for driving under the influence of an intoxicant. Records of the Department of Safety
established that the defendant had two prior convictions for driving on a revoked license.
        The first issue, involving the legality of the stop and arrest, has been waived. Tenn. Ct. Crim.
App. R. 10(b). The defendant's brief contains no argument, no citation to authorities, and no
references to the record in regard to the motion to suppress evidence. It is the duty of the appealing
party to prepare a record which conveys a fair, accurate, and complete account of what transpired
in the trial court with regard to the issues which form the basis of the appeal. Tenn. R. App. P.
24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d
6 (Tenn. Crim. App. 1987). Absent an essential part of the record, this court must presume that the
determination made by the trial court is correct. State v. Taylor, 669 S.W.2d 694, 699 (Tenn. Crim.
App. 1983); State v. Baron, 659 S.W.2d 811, 815 (Tenn. Crim. App. 1983). Rule 27(a)(7) of the
Tennessee Rules of Appellate Procedure specifically requires the citation of authority. See State v.
Aucoin, 756 S.W.2d 705 (Tenn. Crim. App. 1988).1 The defense brief contains none.

         The defendant does argue that the trial court failed to consider the applicable sentencing
statute, applied a non-statutory enhancement factor, and failed to consider two mitigating factors.
Due to these errors, the defendant submits that the sentence imposed was excessive.

      The defendant's first argument relating to sentence is based upon his interpretation of Tenn.
Code Ann. § 55-50-504(a)(2), which provides in pertinent part as follows:

         A second or subsequent violation of subdivision (a)(1) is a Class A misdemeanor.
         A person who drives a motor vehicle on any public highway of the state at a time
         when the person's privilege to do so is canceled, suspended or revoked because of a
         second or subsequent conviction for vehicular assault under § 39-13-106, vehicular
         homicide under § 39-13-213, or driving while intoxicated under § 55-10-401 shall
         be punished by confinement for not less than forty-five (45) days nor more than one
         (1) year . . . .

Tenn. Code Ann. § 55-50-504(a)(1) prohibits driving on a canceled, revoked or suspended license,
a Class B misdemeanor. The defendant submits that this court should interpret the statute to mean
that the minimum 45-day sentence applies only when the revocation was the result of a second or
greater conviction for vehicular assault, vehicular homicide, or driving while intoxicated. That is,
only those who are committing vehicular assault, vehicular homicide, or driving under the influence,
as opposed to merely driving without a license but otherwise in compliance with law, qualify for the
45-day minimum. Such an interpretation, the defendant submits, would result in his punishment
being imposed under Tenn. Code Ann. § 55-50-504(a)(1), which sets the range at "not less than two
days nor more than six months." The state did not address this specific statutory interpretation issue.
It merely pointed out that under either statute, a misdemeanant is not entitled to the presumption of
a minimum sentence and that the defendant had a prior record which warranted a 90-day
incarceration and the denial of probation.



         1
         Substantive issues not raised in this appeal h ave been partially discusse d in other ca ses. See, e.g., State v.
Rhymer, 915 S.W .2d 465 (Tenn. C rim. App. 1 995); Williams v . State, 506 S.W .2d 193 (Tenn. C rim. App. 1 973).

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         In matters of statutory construction, the role of this court is to ascertain and give effect to the
intent of the legislature. State v. Williams, 623 S.W.2d 121, 124 (Tenn. Crim. App. 1981). Unless
ambiguity requires resort elsewhere to ascertain legislative intent, judicial interpretation of a statute
is restricted to the natural and ordinary meaning of the language used. Roddy Mfg. Co. v. Olson, 661
S.W.2d 868, 871 (Tenn. 1983). Legislative enactments must be interpreted in their natural and
ordinary sense without a forced construction to either limit or expand their meaning. State v.
Thomas, 635 S.W.2d 114, 116 (Tenn. 1982). Courts must construe statutes as a whole and in
conjunction with their surrounding parts and their interpretation should be consistent with their
legislative purposes. State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995). Yet the meaning of a
statute is to be determined not from specific words in a single sentence or section but from the act
in its entirety in light of the general purpose of the legislation; any interpretation should express the
intent and purpose of the legislation. National Gas Distrib., Inc. v. State, 804 S.W.2d 66, 67 (Tenn.
1991); Loftin v. Langsdon, 813 S.W.2d 475, 478-79 (Tenn. Ct. App. 1991).

        Here, the record establishes that the trial court agreed with the interpretation offered by the
defendant. That is, that the plain language of Tenn. Code Ann. § 55-50-504(a)(2) only applies to
driving on a revoked license when the revocation was due to a "second or subsequent conviction for
vehicular assault . . ., vehicular homicide . . ., or driving while intoxicated . . . ." The trial judge also
observed, however, that "this is not a case where the minimum mandatory will have any impact on
the sentence I'm going to give anyway. . . ." The trial court determined that the previous criminal
history of the defendant was an enhancement factor and stated that "a factor to be considered is the
basis of the revocation was a DUI . . . ." See Tenn. Code Ann. § 40-35-114(1). The trial court also
found the presence of another enhancement factor, that the defendant had violated the terms of prior
sentences involving release into the community. See Tenn. Code Ann. § 40-35-114(8).

        The defendant also complains that the trial court failed to consider any mitigating factors.
He maintains that the trial court should have determined that his driving "neither caused nor
threatened serious bodily injury." See Tenn. Code Ann. § 40-35-113(1).

        In misdemeanor sentencing, the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. The sentence must be specific
and consistent with the purposes of the Act. Tenn. Code Ann. § 40-35-302. Not greater than 75
percent of the sentence should be fixed for service by a misdemeanor offender; however, a DUI
offender may be required to serve the full 100 percent of his sentence. Tenn. Code Ann. § 40-35-
302(d); State v, Palmer, 902 S.W.2d 391, 393-94 (Tenn. 1995). 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).

         Upon service of the required percentage, the administrative agency governing the
rehabilitative programs determines which among the lawful programs available is appropriate. The
trial court retains the authority to place the defendant on probation either immediately or after a term
of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The legislature has
encouraged courts to consider public or private agencies for probation supervision prior to directing


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supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory
scheme is designed to provide the trial court with continuing jurisdiction in misdemeanor cases, as
well as a wide latitude of flexibility. 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). Appellate review of misdemeanor sentencing is de novo with a presumption of correctness.
See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).

        In this case, it is not necessary for the court to interpret Tenn. Code Ann. § 55-50-504. The
45-day minimum was not a factor in the sentence imposed. Given the defendant's prior criminal
history and, in particular, his persistence in driving on a revoked license, the circumstances would
warrant a 90-day sentence. As indicated, there is no presumptive minimum in misdemeanor
sentencing. Both Tenn. Code Ann. § 40-35-114(1) and (8) apply. The defendant did not testify at
the bench trial or at the sentencing hearing. It was stipulated that the defendant's license was
originally revoked due to driving under the influence. While that should not have been applied as
an enhancement factor, the trial court made reference to it as a factor in the context of prior criminal
history. Likewise, the defendant has not complied with sentencing conditions involving release into
the community. Even application of the sole mitigating factor argued by the defendant, that his
conduct did not threaten serious injury, would not change our view that the sentence of 11 months
and 29 days, including 90 days of incarceration with the balance on supervised probation, is entirely
appropriate.

        Accordingly, the judgment is affirmed.



                                                        ______________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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