         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs July 27, 2004

                    STATE OF TENNESSEE v. CARL CREASON

                   Direct Appeal from the Circuit Court for Bledsoe County
                            No. 73-2000    J. Curtis Smith, Judge



                     No. E2003-02505-CCA-R3-CD - Filed August 10, 2004


A jury found the Defendant, Carl Creason, guilty of driving on a revoked driver’s license. After
conducting a sentencing hearing, the trial judge sentenced the Defendant to six months in the county
jail. The Defendant appeals his sentence, arguing that the trial court erred by not allowing him to
serve his sentence on probation. We affirm the judgment of the trial court, but remand for entry of
a uniform judgment document.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                                        Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR., JJ., joined.

Edward L. Boring, Pikeville, Tennessee, for the appellant, Carl Creason.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and James W. Pope III, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        We will first briefly summarize the facts presented at trial, in the light most favorable to the
State. Officer Kenneth Pruitt testified that on September 28, 2000, he was employed as a police
officer with the Pikeville Police Department. At about 11 p.m. on that date he was “running radar”
and he observed an automobile going forty-nine miles-per-hour in a thirty miles-per-hour speed zone.
He activated his emergency lights and observed the car swerving while the driver and the passenger
in the vehicle were trying to exchange seats. They were unsuccessful in exchanging seats and they
stopped the vehicle. After the vehicle stopped, the officer testified that he observed the passenger
and the driver “swap seats.” The officer testified that as he approached the vehicle, the female
occupant, who was seated in the driver’s seat, handed him her driver’s license. The officer told the
occupants that he needed to see the Defendant’s driver’s license because he was the one that had
been driving. He stated the Defendant at that time told him his license was suspended. The officer
later determined that the Defendant’s driver’s license was “on revoked status.” Records from the
Tennessee Department of Safety reflecting that the Defendant’s driver’s license had been revoked
were also introduced at trial.

         The Defendant was subsequently indicted for driving while his driver’s license was cancelled,
suspended or revoked. See Tenn. Code Ann. § 55-50-504. Based on certain items which were found
in the vehicle at the time he was stopped, the Defendant was also charged with felony possession of
drug paraphernalia. See Tenn. Code Ann. § 39-17-425(b)(1). Following a jury trial, the Defendant
was acquitted of felony possession of drug paraphernalia. The jury was unable to reach a verdict as
to the lesser-included offense of misdemeanor possession of drug paraphernalia. See Tenn. Code
Ann. § 39-17-425(a)(1). A mistrial was declared on that charge. The jury found the Defendant
guilty of driving on a revoked license. A presentence report was prepared and a sentencing hearing
was conducted, after which the trial judge sentenced the Defendant to six months in the county jail.
It is from the sentence imposed by the trial court that the Defendant appeals, arguing that he should
have been granted probation rather than being ordered to serve his sentence in confinement.

        Misdemeanor sentencing is controlled by Tennessee Code Annotated section 40-35-302,
which provides in part that the trial court shall impose a specific sentence consistent with the
purposes and principles of the Tennessee Criminal Sentencing Reform Act of 1989. See Tenn. Code
Ann. § 40-35-302(b). Misdemeanor sentencing is designed to provide the trial court with continuing
jurisdiction and a great deal of flexibility. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn.
1998); State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997). One convicted of a
misdemeanor, unlike one convicted of a felony, is not entitled to a presumptive sentence. See State
v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).

        In misdemeanor sentencing, a separate sentencing hearing is not mandatory, but the court is
required to provide the parties with a reasonable opportunity to be heard as to the length and manner
of service of the sentence. See Tenn. Code Ann. § 40-35-302(a). The trial court retains the authority
to place the defendant on probation either immediately or after a time of periodic or continuous
confinement. See id. § 40-35-302(e).

         The sole issue presented on appeal is whether the trial judge erred by ordering that the
Defendant serve his sentence in confinement. The Defendant first argues that the State did not
overcome the statutory presumption that he is entitled to an alternative to incarceration. We must
note that the statutory presumption of favorable candidacy for alternative sentencing set forth in
Tennessee Code Annotated section 40-35-102(6) is not applicable to misdemeanors. See State v.
Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). While the Defendant acknowledges that
it is not his “first brush with the law,” he argues that he has now “turned over a new leaf.”

       At the time of sentencing the Defendant was approximately forty years old. He has an eighth
grade education. The presentence report does not reflect a steady work history. The Defendant has
numerous health problems. He has a lengthy criminal history. His record of motor vehicle offenses


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includes six convictions for driving on a revoked or suspended license and at least three convictions
for DUI. In addition to other charges, he has been convicted of theft, joy riding, three counts of
assault, possession of a firearm in a state park, reckless endangerment, public intoxication, forgery,
and unlawful possession of a firearm. One of the assault convictions and one of the firearm
convictions occurred after the date of the offense for which he was sentenced herein.

       It is apparent that the trial court was not favorably impressed with the Defendant’s criminal
record. At sentencing, the trial judge stated:

       This is a man who has obvious physical problems and he has a terrible record. He’s
       continued to break the law. . . . It’s obvious that probation has not worked.
       Measures less restrictive than, you know, serving the time in the past. He’s given
       probation on numerous occasions. . . . He has a long history of criminal conduct.
       I think society is entitled to have some protection from somebody such as Mr.
       Creason.

         The Defendant argues that it is obvious that he has been successfully rehabilitated because
at the time of sentencing, he had remained “trouble-free over the last year.” We are unpersuaded.
Because of the Defendant’s numerous criminal convictions spanning virtually his entire adult life,
we have no hesitancy in concluding that the trial judge neither erred nor abused his discretion by
ordering that the Defendant’s sentence be served in confinement.

       We note that the record on appeal does not contain the uniform judgment document required
by our sentencing law. See Tenn. Code Ann. § 40-35-209(f); see also Tenn. S. Ct. R. 17. The
judgment entered in the trial court, as contained in the record, is not in the form required by
Tennessee Supreme Court Rule 17. Upon remand, the trial court should enter the appropriate
judgment form.

        The judgment of the trial court is affirmed. This case is remanded for the purpose of entering
a uniform judgment document.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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