        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION , 1999         April 20, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9805-CR-00229
                               )
      Appellee,                )
                               )
                               )    DAVIDSON COUNTY
VS.                            )
                               )    HON. SETH NORMAN,
CLINTON E. KEY,                )    JUDGE
                               )
      Appe llant.              )    (Misdemeanor Sentencing)


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


FOR THE APPELLANT:                  FOR THE APPELLEE:

MAR Y GR IFFIN                      JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
1202 Stahlman Building
Nashville, TN 37201                 CLINTON J. MORGAN
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    VICTOR S. JOHNSON
                                    District Attorney General

                                    PAMELA ANDERSON
                                    Assistant District Attorney General
                                    Washington Square, Suite 500
                                    Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

       The Defendant, Clinton E. Key, appeals his sentences of thirty days for

disord erly condu ct; six mon ths for resis ting arrest; thirty days for criminal

trespass; and e leven m onths , twenty -nine d ays for assa ult. Follo wing a jury trial,

the trial court ordered Defendant to serve the sentences consecutively in the

county jail, with release eligibility at seventy-five percent. Defendant argues that

the trial court erred by imposing the maximum sentence on each conviction and

by orderin g the sen tences served c onsec utively.



       Although the record do es not contain a transcript of the evidence

presented to the jury during the trial, the Defendant submitted a statement of the

evidence.1     These crimes were the result of two separate confrontations with

police officers—one in September of 1996 and the other in February of 1997. On

both occasions, the Defendant apparently resisted the efforts of police officers to

take him into cu stody.



       Defen dant, a multiple m isdemea nant, is not entitled to the pre sumptive

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

1997); State v. Combs, 945 S.W.2d 770, 77 4 (Ten n. Crim. A pp. 199 6); State v.


       1
           The State argues that the Statement of Evidence filed by Defendant following his
Notice of Appeal is insufficient under Tennessee Rule of Appellate Procedure 24(c). We find
that the Statement was filed with the trial court within the 90-day period as required. Defendant
hand-delivered a copy of the Statement to the State. No objections by the State appear in the
record; and pursuant to Tennessee Rule of Appellate Procedure 24(f), the Statement became
final upon inaction by the trial court.
        Although, as the State argues, the Statement has not been specifically “certified” by
Defendant or Defendant’s counsel, we find (1) that Defendant has substantially complied with
the requirements of Rule 24, and (2) that the proper place for the State’s objections was in the
trial court, as the trial court was the proper arbiter of any factual disputes between the State
and Defendant. We consider the Statement of Evidence in lieu of a transcript of the evidence.

                                              -2-
Boyd, 925 S.W .2d 237 , 244 (T enn. C rim. App . 1995); State v. Seaton, 914

S.W.2d 129, 13 3 (Ten n. Crim. A pp. 199 5); State v. W illiams, 914 S.W.2d 940,

949 (Tenn . Crim. A pp. 199 5); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.

App. 1994 ).



       In misdemeanor sentencing, the trial cour t 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 practice is to make findings on the record when
       fixing a percentage of a defendant’s sentence to be served in
       incarceration, a trial court need only consider the principles of
       sentencing and enhancement and mitigating factors in order to
       com ply with the legislative mandates of the misdemeanor
       sentencing statute.

Id. at 274.



       With respect to consecutive sentencing, Tennessee Code Annotated § 40-

35-115 provides that the trial court may order multiple sentences to run

cons ecutive ly if the “defendant is an offend er who se rec ord of c rimina l activity is

extensive.” Ten n. Code A nn. § 40-35-1 15(b)(2).



       At the Defendant’s sentencing hearing, the only proffered mitigating proof

relevant to sentencing was Defendant’s testimony that he has “turned over a new

leaf” by committing misdemeanors rather than “grand felonies.” The trial court



                                           -3-
commented on its co nside ration o f Defe ndan t’s prior re cord o f crimin al activ ity

contained in the presentence report, which includes two felony convictions,2

nineteen misdemeanor convictions,3 and arrests for twenty-eight additional

counts not resulting in convictions. T he report also reflects that a prior sentence

of probation for his first burglary wa s revoked. At the sentencing h earing, the

Defendant demonstrated neither remorse nor potential for rehabilitation, and he

in fact suggested the police officers should be reprimanded for bringing the

charges against him.



       W e find the foregoing evidence sufficient to support both the length and

manner of service o f Defend ant’s sen tences for disorderly conduct, resisting

arrest, criminal trespass , and assau lt. We affirm the sentences ordered by the

trial court.



                                      ____________________________________
                                      DAVID H. WELLES, JUDGE




       2
           Defendant was convicted twice for burglary, once in 1973 and once in 1985.
       3
          Defendant has been convicted twice for driving on a revoked or suspended license,
once for possession of stolen property, once for possession of drug paraphernalia, once for
disorderly conduct, once for resisting a stop and frisk, twice for traffic offenses, once for
criminal trespass, once for reckless endangerment, once for public intoxication, twice for
shoplifting, three times for possession of drugs, twice for disturbing the peace, and once for a
weapons offense.

                                              -4-
CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




                              -5-
