            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

                          JULY 1998 SESSION
                                                       FILED
                                                         August 5, 1998
STATE OF TENNESSEE,                )
                                   )    C.C.A. NO. 01C01-9708-CC-00373
                                                        Cecil W. Crowson
      Appellee,                    )
                                                      Appellate Court Clerk
                                   )    GILES COUNTY
VS.                                )    (Nos. 8106, 8107, 8108 Below)
                                   )
WAYNE COLEMAN BOONE,               )    The Hon. Robert L. Jones
                                   )
      Appellant.                   )    (Sentencing)




FOR THE APPELLANT:                 FOR THE APPELLEE:
SHARA A. FLACY                     JOHN KNOX WALKUP
Public Defender                    Attorney General and Reporter
22nd Judicial District
128 North Second Street            GEORGIA BLYTHE FELNER
P.O. Box 1208                      Assistant Attorney General
Pulaski, TN 38478                  Cordell Hull Building, Second Floor
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   T. MICHAEL BOTTOMS
                                   District Attorney General
                                   22nd Judicial District
                                   P.O. Box 459
                                   Lawrenceburg, TN 38464




OPINION FILED _______________________



AFFIRMED PURSUANT TO RULE 20


JERRY L. SMITH, JUDGE
                                          O P I N IO N

               The appellant, W ayne Colem an Boone, p led guilty to one count of driving

under the influence of an intoxicant (DUI), third offense, one count of simple possession of

marijuana, and two counts of driving on a revoked license. After a sentencing hearing, the

appellant received an effective sentence of six months in jail, followed by 11 months and

29 days on supervised probation. He was ordered to pay a fine of $1100 on the DUI

conviction and a fine of $250 on the simple possession of marijuana conviction. The

appellant was ordered to serve 12 0 days before he would be eligible for work release, and

his driver’s license was revoked for three years. In this appeal as of right, the appellant

contends that his sentence is excessive. Specifically, the appellant contends that the trial

court s hould have sentenc ed him to the statutory minim um of 12 0 days in jail, see T.C.A.

§ 55-10-403(a)(1), and that the trial court should have remitted the mandatory fines based

on his indigency. The state, in a cross-appeal, contends that the trial court erred by failing

to revoke the appellant’s driving privileges.



               Based on our review of the briefs and the entire record in this cause, we

conclude that this is an appropriate case for affirmance under Rule 20, Tennessee Court

of Criminal Appeals Rules.



               When an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the determination

of the trial court was correct. T.C.A. § 40-35-401(d).           However, this presumption of

correctness is "cond itioned upon the affirmative sho wing that the trial court in the record

considered the sen tencin g principles and all relevant facts and circum stances." State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to dem onstrate

such consid eration , review of the sentenc e is purely de novo. Id. If appellate review

reflects that the trial court properly considered all relevant factors and its findings of fact are

adeq uately supported by the rec ord, this Court m ust affirm the sentence . State v. Fletcher,

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a review, this Court must

consider the evidence, the presentence report, the sentencing princ iples, the argum ents of

coun sel, the nature and character of the offense, mitigating and enhancement factors, any


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stateme nts made b y the defendant, and the potential for rehabilitation or treatm ent. State

v. Holland, 860 S.W.2d 53, 60 (Tenn. C rim. App. 199 3). The defendant bears the burden

of showing the im propriety of the sentenc e impose d. State v. Gregory, 862 S.W.2d 574,

578 (Tenn. C rim. App. 199 3).



              A misde meana nt is not entitled to the presumption of a minimum sentence.

State v. Creasy, 885 S.W .2d 829 (Tenn . Crim. App. 19 94).            Further, misdemeanor

sentences do not contain ranges of punishments, and a misdemeanor defendant may be

sentenced to the maximum term provided for the offense as long as the sentence imposed

is consistent with the purposes of the sentencing act. State v. Palmer, 902 S.W.2d 391,

393 (Tenn. 1995). Our statutory system pertaining to misdemeanor sentencing is designed

to provide trial courts with continuing jurisdiction an d a great deal of flexibility. State v.

Boyd , 925 S.W .2d 237, 244 (T enn. Crim. A pp. 1995).



              In the pre sent c ase, th e trial court held a separate sentencing hearing for

which a pre-sentence report was ordered. The appellant’s criminal record consists of three

public intoxica tion co nviction s in 199 0-199 1 and th ree DU I convic tions in 1994-1996. The

appe llant was also con victed of rape in 1976 , however, the trial court foun d that the

conviction was too old to be relevant for sentencing purposes. In determining the sentence,

the trial court considered the appellant’s previous criminal history and the fact that all prior

relevant offenses involved the use of alcohol. It also considered that the appellant had been

given a break on the three prior DUI c onvictions in that he wa s allowed to plead gu ilty to a

first offense in eac h instance. As mitigating circumstances, the trial court noted that the

appellant had voluntarily and successfully completed an alcohol treatment program in May

1997. The trial court further considered as positive factors that the app ellant w as gain fully

employed and had a supportive family. Based on our review, we find that the appellant has

not overcom e the presum ption that the senten ces impo sed by the trial court are correct.



              The appellant also argues that the trial court erred by failing to remit the

manda tory fines becaus e he is indigent. See T.C.A. § 55-10-403(b)(2) and T.C.A. § 39-17-

428(d)(1). The decision of whether to grant a waiver of mandatory fines based on a finding


                                              -2-
of indigen cy rests within th e trial cou rt’s disc retion, a nd tha t decis ion can not be revers ed in

the absence of evidence in the record which indicates an abuse of that discretion which has

done great injustice an d injury to the party comp laining. State v. Black, 897 S.W.2d 680,

684 (Tenn. 1995). W hile the trial court found the app ellant to be indigent in this case for

purposes of appointing cou nsel, it also found that the a ppellant could pay $25 a week to

partially reimburse the state’s expense in doing so. The pre-sentence report shows that the

appellant will be responsible for m edical bills if not covered by insurance , however, there

was also proof that the appellant is gainfully employed and that his employer would allow

him to return to work after a pe riod of incarceration, includin g a commitment to provide

transportation if the appellant is given work release. Based on the record, we cannot find

that the trial court abused its discretion in declining to remit the mandatory fines.



                Finall y, the state argues that the trial court erred by failing to revoke the

appe llant’s driving privilege upon his conviction for DUI, third offense. See T.C.A. § 55-10-

403(a)(1). Beca use th e judgm ent cle arly state s as a s pecial c onditio n that th e appe llant’s

license is revoked fo r a period of three years, this issue is moot.



                Acc ordin gly, based upon a reading of the entire record, the briefs of the

parties, and the applica ble law, this Court f inds th at the ju dgm ent of th e trial cou rt shou ld

be affirmed pu rsuant to Rule 20, T ennessee Court of Crim inal Appeals Rules . IT IS,

THEREFORE, ORDERED that the judgment of the trial c ourt is a ffirm ed pur suan t to Rule

20.


                                                    ________________________________
                                                    JERRY L. SMITH, JUDGE

CONCUR:


________________________________
PAUL G. SUMMERS, JUDGE


________________________________
DAVID G. HAYES, JUDGE




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