        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                        MARCH SESSION , 1999          May 4, 1999

                                                 Cecil W. Crowson
STATE OF TENNESSEE,        )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9710-CC-00464
                           )
      Appellee,            )
                           )
                           )    MONTGOM ERY COUNTY
VS.                        )
                           )    HON . JOHN H. GAS AWAY III,
STEVE A. BAGGETT,          )    JUDGE
                           )
      Appe llant.          )    (Misdemeanor Sentencing)


               ON APPEAL FROM THE JUDGMENT OF THE
              CRIMINAL COURT OF MONTGOMERY COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

PETER M. OLSON                  JOHN KNOX WALKUP
114 Franklin Street             Attorney General and Reporter
Clarksville, TN 37040
                                CLINTON J. MORGAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JOHN CARNEY
                                District Attorney General

                                WILLIAM CLOUD
                                Assistant District Attorney General
                                204 Franklin Street, Suite 200
                                Clarksville, TN 37040



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defendant, Steve A. Bagg ett, appeals his se ntence of ten d ays

incarceration followed by six months probation for reckless driving, a class B

misdem eanor.      Defendant entered a plea of guilty to one count of reckless

driving, with the length and manner of service of the sentence left to the

discretion of the trial court. At that time, the State dismissed one count of DUI

and one count of refusal to submit to alcohol testing. Following a sentencing

hearin g, the trial cou rt sente nced Defendan t to ten d ays inc arcera tion an d six

months of probation. From this order, Defendant timely appeals.1



       Defendant first contends that the trial court erred by failing to require and

consider a prese ntence report.         Presentence reports are not mandatory for

misdemeanor sentencing. Tenn. Code Ann. § 40-35-205(a) (“Upon acceptance

of a guilty plea . . . the court shall, in the case of a felony, and may, in the case

of a misdemeanor, direct the presentence service officer to make a presentence

investigation and report . . . .”). At the sentencing hearing, Defendant was

afforded “the opportunity to be heard and present evidence relevant to the

sentencing” in accordance with Te nnes see C ode A nnota ted § 4 0-35- 209(b ). This

issue lac ks me rit.




       1
          At the time appellate briefs were submitted, the sentencing hearing in this case had
not yet been transcribed. Defendant moved this Court for the right to supplement his brief
following access to the transcript, and he expressed his intention to raise additional issues.
This Court granted Defendant’s motion and informed him upon receipt of the sentencing
hearing transcript. The Court received no supplementation by Defendant.

                                             -2-
      Defendant next argues (1) that he is entitled to the presumptive minimum

sentence allowed by law; and (2) that because the offense of reckless driving has

no minim um s enten ce pre scribe d by the legisla ture, the trial court should have

permitted his entire sentenc e to be served on probation, with no incarceration.

We disagree , and we affirm the s entenc e ordere d by the trial c ourt.



      Defen dant, a misdemeanant, is not entitled to the presumptive minimum

sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State

v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. A pp. 199 6); State v. Boyd , 925

S.W.2d 237, 244 (Tenn. Crim. A pp. 199 5); State v. Seaton, 914 S.W.2d 129, 133

(Tenn. Crim. A pp. 199 5); State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim.

App. 19 95); State v. Creasy, 885 S.W .2d 829, 832 (Tenn. Crim . App. 1994 ).



      In misdemeanor sentencing, the trial court retains the authority to place the

defendant on probation either immediately or after a time of periodic or

continuous confinement.      Tenn. Code Ann. § 40-35-302(e).          Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and

a great deal of flexibility. Furthermore, our supreme court recently stated in State

v. Troutman, 979 S.W.2d 271 (Tenn. 1998), that the trial court’s findings on the

issue of incarceration need not appear in the record:

      [W ]hile the better p ractice is to make findings on the record when
      fixing a percentage of a defenda nt’s se ntenc e to be served in
      incarceration, a trial court need on ly consider the principles of
      sentencing and enhancement and m itigating facto rs in order to
      com ply with the legislative mandates of the misdemeanor
      sentencing statute.

Id. at 274.




                                        -3-
       Our review of the sentencing hearing transcript reveals that Defendant was

previo usly convicted of possession of cocaine for resale. No relevant mitigation

was offered b y Defen dant. 2 The prior felony drug conviction supports a sentence

which includes incarceration.          Therefore, we find no reversible error in the

senten ce ma ndated by the trial co urt.



       Defe ndan t’s sentence o f ten days incarceration followed by six months

probation for the offense of reckless driving is affirmed.




                                      ____________________________________
                                      DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




       2
          Defendant offered two witnesses who testified (1) that they did not believe Defendant
was intoxicated at the time of the offense, and (2) that they considered his actions of reckless
driving to be justified due to passion.

                                              -4-
