         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 17, 2000

                STATE OF TENNESSEE v. RANDY LEE BOWERS


                 Direct Appeal from the Criminal Court for Sullivan County
                            No. S41,828    R. Jerry Beck, Judge



                                 No. E2000-00585-CCA-R3-CD
                                       January 9, 2001

After entering guilty pleas to possession of a Schedule VI controlled substance (marijuana); driving
under the influence, third offense; and driving while his license was revoked, after a second or
subsequent conviction for driving under the influence, the Criminal Court for Sullivan County
conducted a sentencing hearing and then sentenced the defendant. The defendant contends that the
trial court erred in ordering consecutive sentences and in failing to place him on probation after the
service of the minimum sentence of one hundred-twenty days for DUI third offense. After careful
review, we interpret the defendant’s sentence to be three hundred-eighteen (318) days of full
incarceration followed by four hundred fifty-five (455) days on supervised probation. Further, we
affirm the denial of alternative sentencing.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES, J., and
WILLIAM B. ACREE, JR., SP .J. , joined.

Joseph F. Harrison, Assistant Public Defender, for the appellant, Randy Lee Bowers.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Joseph E. Perrin, Assistant District Attorney, for
the appellee, State of Tennessee.


                                             OPINION

        The defendant, Randy Lee Bowers, entered guilty pleas, without a recommendation from the
State, to the following Class A misdemeanors:

       (1) driving under the influence (DUI), third offense, Tenn. Code Ann. § 55-10-401;
         (2) driving while his license was revoked after a second or subsequent DUI, Tenn.
             Code Ann. § 55-50-504; and
         (3) possession of a Schedule VI controlled substance (marijuana), Tenn. Code Ann.
             § 39-17-418.

At the conclusion of the sentencing hearing, the Sullivan County Criminal Court sentenced the
defendant. In reviewing the entire appellate record and trial court’s sentence, we discovered several
discrepancies between the judgment forms and the trial court’s order from the bench. We find it
necessary in our review to interpret and clarify the trial court’s sentence by examining the judgment
forms in conjunction with the trial court’s order from the bench. After examination of the record,
we conclude that the defendant received the following sentence:

         (1) for the DUI third offense, eleven months and twenty-nine days 1 (364 days) to
             serve seventy-five percent (75 % of 364 days = 273 days), of which one hundred-
             twenty days is the minimum sentence;
         (2) for the driving on a revoked license after a second or subsequent DUI, the
             minimum sentence of forty-five (45) days, consecutive to (1); and
         (3) for the possession of a Schedule VI controlled substance, eleven months and
             twenty-nine days on supervised probation, consecutive to (1) and (2)

        The defendant’s appeal is properly before this Court and he contends the trial court erred in
ordering the sentences to run consecutive and denying him an alternative sentence, specifically
probation, after serving one hundred-twenty (120) days mandatory time for the DUI third offense and
forty-five (45) days mandatory time for the driving on a revoked license after a second or subsequent
DUI.

                                                     ANALYSIS

                                                Length of Sentence

        The defendant contends that the trial court’s sentence for DUI third offense was excessive.
As we read the defendant’s brief, he complains of the seventy-five percent incarceration on his
sentence for DUI third offense. The DUI penalty statute mandates a maximum sentence for a DUI
conviction with the only function of the trial court being to determine what period above the
minimum period of incarceration established by statute, if any, is to be suspended. See Troutman,
979 S.W.2d at 273-74; State v. Combs, 945 S.W.2d 770 (Tenn. Crim. App. 1996), perm. to appeal
denied, (Tenn. 1997).

         1
            Convictions for DUI third provid e for a sentenc e of confinem ent “not less than o ne hundre d (120) days nor
more than eleven (11) months and twenty-nine (29 ) days.” Tenn. C ode Ann § 55-10 -403(a)(1 ). The D UI pena lty statute
further prov ides that “[a]ll persons sentenced under subsection (a) shall, in addition to service of at least the minimum
sentence, be required to serve the difference between the time actually served and the maximum sentence on probatio n.”
Tenn. Code Ann. § 55 -10-403 (c). Therefore, the length of a defendant’s sentence for DUI third offense is set at eleven
(11) mo nths and twen ty-nine (29) d ays. See State v. Troutman, 979 S.W.2d 271, 373, (Tenn. 1998)

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        While otherwise entitled to the same considerations under the Sentencing Reform Act, unlike
a felon, a misdemeanant is not entitled to the presumption of a minimum sentence. See State v.
Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995). In the instant case, the defendant must
receive a sentence of eleven (11) months and twenty-nine (29) days with one hundred twenty(120)
days of continuous confinement. See Troutman, 979 S.W.2d at 273; see also supra, at fn. 1. The
trial court, in its order from the bench, ordered the defendant’s sentence to be at seventy-five (75)
percent. Although there is some confusion as to exactly what sentence the trial court intended, in
our view, the trial court sentenced the defendant to serve seventy-five (75) percent of his eleven (11)
months and twenty-nine (29) days in confinement, which is two hundred seventy-three (273) days.
This sentence is one hundred fifty-three (153) days over the minimum sentence of one hundred
twenty (120) days.

        In determining if incarceration is appropriate, a trial court considers: (1) the need to protect
society by restraining a defendant having a long history of criminal conduct; (2) the need to avoid
depreciating the seriousness of the offense; (3) whether confinement is particularly appropriate to
effectively deter others likely to commit similar offenses; and (4) whether less restrictive measures
have often or recently been unsuccessfully applied to the defendant. Tenn. Code Ann.§ 40-35-
103(1); see also Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn. Crim.
App. 1997); State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).

        After reviewing the record, we find that the trial court considered the sentencing principles
and all relevant facts and circumstances, and as such, this Court’s review is de novo with a
presumption of correctness. See Tenn. Code Ann. § 40-35-401(d); Poole, 945 S.W.2d at 96; Ashby,
823 S.W.2d at 169. In sentencing the defendant, the trial court placed great emphasis on the
defendant’s prior record as set out in the presentence report. The court noted that the defendant had
at least six (6) prior DUI convictions and numerous other misdemeanor convictions involving
alcohol and marijuana. These convictions were the basis of the trial court’s decision to increase the
defendant’s incarceration above the one hundred twenty (120) day minimum. The trial court also
stated in its findings that the defendant “presents a threat to the community.”

        Based upon the defendant’s prior record, the trial court denied full probation to the defendant
after service of the statutory minimum incarceration of one hundred twenty (120) days for the DUI
third offense. After review, we hold that the trial court did not act arbitrarily in requiring the
defendant to serve seventy-five percent (75%) of his eleven (11) month and twenty-nine (29) day
sentence in confinement.

        Next, we look at the forty-five (45) day sentence, consecutive to the DUI third, for driving
on a revoked license after a second or subsequent DUI offense. Tennessee Code Annotated section
55-50-504 requires that a defendant convicted of driving on a revoked license after a second or
subsequent DUI receive a period of “confinement for not less than forty-five days.” The trial court
simply invoked the mandatory minimum for this offense and, therefore, did not err.

                                       Consecutive Sentences


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         The defendant does not contest the eleven (11) months and twenty-nine (29) day sentence
he received for possession of a Schedule VI controlled substance. The defendant does, however,
contest the trial court’s order of consecutive sentences for the three offenses. We note that the trial
court placed great emphasis on the defendant’s extensive criminal history and found that the
defendant “presents a threat to the community.” In reviewing the record, the record clearly supports
the trial court’s imposition of consecutive sentencing.

                                          CONCLUSION

        We conclude that the defendant received the following sentence: (1) eleven (11) months and
twenty-nine (29) days for the DUI third, to serve two hundred seventy-three (273) days in
confinement and the remaining ninety-one (91) days on probation; (2) forty-five (45) days
incarceration for the driving on revoked; and (3) eleven (11) months and twenty-nine (29) days
probation for the possession of marijuana, which is essentially three hundred sixty-four (364) days.
Each of these sentences are to be served consecutive to each other. Therefore, the defendant must
serve three hundred-eighteen (318) days in confinement, and the remaining four hundred fifty-five
(455) days on probation, for a total effective sentence of seven hundred seventy-three (773) days.
Furthermore, the defendant has not met his burden of showing the impropriety of the sentences. The
judgment of the trial court is therefore affirmed.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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