         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 22, 2005

               STATE OF TENNESSEE v. DAVID JACOB RIGSBY

                    Appeal from the Circuit Court for Humphreys County
                              No. 10713 Robert Burch, Judge



                   No. M2005-00434-CCA-R3-CD - Filed February 1, 2006


The defendant was charged with two counts of vehicular homicide and one count of driving under
the influence. He pled nolo contendere to one count of vehicular homicide. The defendant was on
probation for prior convictions at the time of his plea and sentencing. A subsequent warrant for
violation of probation was issued for his probationary sentence. The trial court sentenced the
defendant to six years on his vehicular homicide plea to run consecutively to his probationary terms.
On appeal, the defendant argues that the trial court should not have ordered the vehicular homicide
sentence to be served consecutively to his probationary sentence. We conclude that the trial court
did not err, and affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, David Jacob Rigsby.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; Dan
Alsobrooks, District Attorney General; and Raymond Crouch, Assistant District Attorneys General,
for the appellee, State of Tennessee.



                                            OPINION

        On June 6, 2003, the defendant was involved in a traffic accident caused by his driving at a
high rate of speed in hazardous conditions and having a blood alcohol level of .09. The defendant
and the victim, Billy Brewer, were ejected from the vehicle. The victim died as a result of the
accident. On August 2, 2004, the Humphreys County Grand Jury indicted the defendant for two
counts of vehicular homicide and one count of driving under the influence (“DUI”), first offense.
On December 9, 2004, the defendant pled nolo contendere to one count of vehicular homicide by
reckless operation of a motor vehicle. The trial court held a sentencing hearing on January 26, 2005.
At the time of the sentencing hearing, the defendant was on probation for aggravated burglary and
sale of cocaine. At the time of the sentencing hearing, a violation of probation warrant was pending
on those charges. At the conclusion of the sentencing hearing, the trial court sentenced the defendant
to six years to be served as a Range I Standard Offender. The trial court then ordered the vehicular
homicide sentence to be served consecutively to the sentences for which the defendant was on
probation. The defendant appeals the imposition of the trial court’s sentence.

                                            ANALYSIS

        The defendant’s sole argument on appeal is whether the trial court erred in ordering his
sentence to run consecutively to the sentences that had proceedings pending for violation of
probation. The defendant argues that the trial court erred because the prior suspended sentences
stemming from his probation are stayed until the defendant serves his six year sentence most recently
imposed by the trial court. He does not challenge either the length of the sentence or the manner
of service for his vehicular homicide sentence.

        “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo review
on the record of such issues. Such review shall be conducted 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). “However, the presumption of correctness which accompanies the trial court’s action
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). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.

       The trial court made the following findings of fact:


               With regard to the fact that he is presently serving other sentences, was [sic]
       this sentences to be served consecutively or concurrently to those sentences, the
       Court finds as a finding of fact that this defendant is an offender whose record of
       criminal activity is extensive, an understatement if ever there was one.

              We have to remember that we’ve had some defendants that have had longer
       criminal histories; but they were older. They had more time. This gentleman is well
       on the way towards getting a significate [sic] criminal history; and second, that the
       offense was committed while the defendant was on probation.



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               As I have previously stated, I have considered and rejected the possibility of
       suspending this defendant [sic] sentence. It would be totally inappropriate to put him
       on probation because it has been tried before without success; and Mr. Flanagan has
       argued that since his probation violations are pending that we have to run this
       sentence consecutive to them because they have not been revoked yet. Well, I
       respectfully disagree. I can run this sentence consecutively, which I’m going to do,
       to his previous cases. The cases he is presently serving; and if they are not
       suspended, then or if they are not revoked then fine. It’s consecutive to a suspended
       sentence. If they are revoked, then it will be run. Whenever that happens, that’s for
       whoever hears that; and I’m of the opinion that the fact that action on the violation
       of probation hadn’t been taken does not prevent me from running these sentences
       consecutively.

              Therefore, the Court orders that the sentence be served consecutively to the
       sentences that he is presently serving.


        As noted, the defendant was on probation and proceedings for a violation of probation for
these sentences were pending at the time of sentencing. As we stated above, the defendant argues
that the trial court did not have the authority to sentence the defendant to six years to be served
consecutively to sentences for which he was on probation. He believes that his suspended sentences,
which were the subject of the warrant for violation of probation, should have been stayed by the trial
court sentencing him for his plea to vehicular homicide. The defendant relies upon State v. Malone,
928 S.W.2d 41 (Tenn. Crim. App. 1995), and State v. Neil M. Friedman, No. E2004-01198-CCA-
R3-CD, 2005 WL 1021564 (Tenn. Crim. App. at Knoxville, May 2, 2005) to support his argument.


         The appellant in Malone was sentenced to two years for case F-26102. All of this sentence
was then suspended and the appellant was put on probation. Subsequent to case F-26102, the
appellant was sentenced to six years incarceration for case F-26381. The trial court in the second
case ordered that the six years incarceration be served consecutively to the two-year suspended
sentence. The appellant served a portion of the sentence for F-26381 and was released on parole.
Following his release, he was then convicted for two crimes and arrested for another. The trial court
in case F-26102 revoked the appellant’s probation due to the arrest and convictions which occurred
after his release on parole. He then appealed to this Court. On appeal, the Court determined that the
appellant’s “probationary term commenced when his intervening sentences of incarceration were
ordered consecutively to his suspended sentence.” Malone, 928 S.W.2d at 44. This Court stated
“[w]hen a trial judge . . . orders an intervening sentence of incarceration to run consecutively to a
suspended sentence, we hold that the probationary term begins upon completion of the intervening
custodial sentence and custodial sentence includes both confinement and parole.” Id.

        In Neil M. Friedman, the appellant pled guilty to misdemeanor assault. He was sentenced
to eleven months and twenty-nine days which was ordered to be served on probation. While on


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probation, the defendant pled guilty to aggravated assault and violating his probation. He was
sentenced to three years probation for the aggravated assault. The trial court also revoked his
probation for misdemeanor assault and ordered him to serve ninety days with the remainder on
probation. The trial court ordered the misdemeanor sentence to be served consecutively to the felony
sentence. Following this conviction, a probation violation warrant was later filed and the trial court
revoked the appellant’s probation for both sentences. The trial court then ordered the defendant to
serve both sentences in incarceration. On appeal, this Court cited Malone and stated that a trial court
may order a sentence of incarceration to be served consecutively to a sentence of probation. Neil M.
Friedman, 2005WL 1021564, at *2. We then went on to state that in that case, the incarcerative
sentence must be served first and the probationary term resumes after the defendant completes his
incarceration. Id.

        The defendant argues that these cases support his position that the trial court had no authority
to impose his consecutive sentence because he had a pending warrant for violation of probation.
However, we do not agree. Neither case supports the defendant’s argument. At no point in either
case did the trial court stay the appellant’s suspended sentences so that the trial court could then
order the appellants to begin serving their custodial sentence. In both Malone and Friedman, the
trial court ordered a custodial sentence, probation was later revoked for the prior charges. There is
no authority in either case for a trial court to stay a suspended sentence before the hearing on the
probation violation is held.

        In the case at hand, the defendant was on probation for unrelated charges. He pled nolo
contendere to the charges at issue. A warrant for the violation of probation was issued and was
pending before another judge. The trial court in which the defendant pled to vehicular homicide then
ordered that his sentence be served consecutively to the prior probationary term. We do not have
any record before us as to the disposition, if any, of the probation violation warrant. However, even
if the defendant’s probationary sentence remains in effect it does not begin to run until the six year
term of incarceration in this case has expires. See Malone and Friedman. Thus, the trial court could
properly order consecutive sentencing in this case and there is no need to stay the probationary
sentence or revocation proceedings with respect to it.

                                          CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.


                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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