             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE              FILED
                            JULY 1998 SESSION



STATE OF TENNESSEE,          *     C.C.A. # 03C01-9707-CC-00292
                                                      August 21, 1998
      Appellee,              *     BLOUNT COUNTY

VS.                          *     Hon. D. Kelly Thomas, Jr., Judge
                                                      Cecil Crowson, Jr.
GAIL PELL,                   *     (DUI, Second Offense,
                                                        Appellate C ourt Clerk

      Appellant.             *     Driving on Revoked License)




For Appellant:                     For Appellee:

Mack Garner                        John Knox Walkup
District Public Defender           Attorney General and Reporter
419 High Street
Maryville, TN 37804                Ellen H. Pollack
(at trial)                         Assistant Attorney General
                                   425 Fifth Avenue North
Julie A. Martin, Attorney          Nashville, TN 37243
P.O. Box 426
Knoxville, TN 37901-0426           Philip Morton
(on appeal)                        Assistant District Attorney General
                                   363 Court Street
                                   Maryville, TN 37804




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                              OPINION

                 The defendant, Gail Pell, 1 was convicted of driving while under the

influence of an intoxicant, second offense, and driving on a revoked license. The

trial court imposed a sentence of eleven months and twenty-nine days, suspending

all but one hundred twenty days, for driving under the influence and ordered a six-

month concurrent sentence, with all suspended except for two days, for driving on a

revoked license. The balance of each sentence was to be served on supervised

probation. Five months later, probation was revoked and the defendant was

ordered to serve her sentence in jail at seventy-five percent.



                 In this appeal of right, the defendant claims that the trial court erred by

requiring seventy-five percent of her sentence to be served.



                 We affirm the judgment of the trial court.



                 On February 5, 1997, the defendant entered guilty pleas on each of

the two charges. Later that same day, before she reported to jail to start serving the

sentence, the defendant drank six beers. Afterward, she was stopped by police as

she was driving from her boyfriend's residence. As the officer began his

investigation, the defendant, who had no operator's license, was "overwhelmed by

fright and drove off." The defendant had marijuana in her possession at the time

and had smoked marijuana while visiting her boyfriend. The defendant admitted

that she was intoxicated. Shortly thereafter, she entered a guilty plea in the Blount

County General Sessions Court and received an additional sentence of one

hundred twenty days. By the time of the probation revocation hearing on July 3,

1997, the defendant had been incarcerated almost five months.


      1
          The defendant's name is also spelled "Gale" Pell throughout the record.

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              The trial court concluded that the defendant had violated the terms of

her probation and ordered her to serve the eleven-month, twenty-nine-day sentence

with a seventy-five percent release eligibility, "which means basically nine months."

The defendant was given credit for the time she had served in jail and was declared

eligible to participate in work programs to earn sentence credits. Although it was

unknown whether inpatient treatment would be available, the trial judge indicated

that he would allow "some of this nine months in an inpatient treatment" program.

The sentence was allowed to be served concurrently with that ordered in the general

sessions court.



              The defendant concedes that the trial court did not abuse its discretion

by revoking her probation but takes issue with the length of her jail sentence. She

argues that "doubling her actual time of incarceration as a result of her subsequent

conviction was excessive and erroneous." She contends that the nine-month

sentence "is not the least severe measure ... in order to achieve sentencing

purposes."



              When a challenge is made to 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 court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d).



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's


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potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory but the 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 sentences must be specific and in accordance

with the principles, purposes, and goals of the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902

S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to

an authorized determinant sentence with a percentage of that sentence designated

for eligibility for rehabilitative programs. 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 at 393-94. 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. Id.



              Upon service of that 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 supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing

statute is designed to provide the trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the


                                            4
felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).



              Obviously, the trial court did not abuse its discretion by revoking

probation. The minimum period of incarceration was one hundred twenty days; the

maximum possible sentence was eleven months, twenty-nine days. Tenn. Code

Ann. § 55-10-403(a)(1). In our view, an overriding sentencing consideration is that

confinement is necessary to avoid depreciating the seriousness of the offense;

moreover, other less restrictive measures have been unsuccessful. Tenn. Code

Ann. § 40-35-103(1)(B), and (C). Given the defendant's prior criminal history and

her failure to take advantage of opportunities at rehabilitation, a lengthy term in jail is

warranted. The sentence imposed by the trial court was more than fair to the

defendant under the entire circumstances of the case.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Joseph M. Tipton, Judge



_____________________________
David H. Welles, Judge




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