State v. Tracy Lebron Vick ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 27, 1999
Cecil Crowson, Jr.
MAY 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9803-CR-00100
)
v. ) Hamilton County
)
TRACY LEBRON VICK, ) Honorable Stephen M. Bevil, Judge
)
Appellant, ) (Sentencing)
CONCURRING OPINION
I fully concur in the opinion of the majority and offer this separate
opinion solely for the purposes of elucidating the use of the mid-range starting point
for establishing the length of the defendant’s sentence.
Prior to July 1, 1995, the sentencing law prescribed the minimum
sentence in the range as the presumptive sentence. Tenn. Code Ann. § 40-35-
210(c), (d) (1990). Effective on that date, Code section 40-35-210(c) was amended
to provide that the presumptive sentence for Class A felonies “shall be the midpoint
of the range if there are no enhancement or mitigating factors.” Tenn. Pub. Acts ch.
493, §1 (effective July 1, 1995). Subsection (e), which provided that when there are
enhancement and mitigating factors “the court must start at the minimum sentence
in the range,” was not amended in 1995. However, effective May 7, 1998,
subsections (d) and (e) were amended to provide that the midpoint in the range
would be the starting point for establishing the length of a sentence for a Class A
felony offense. Tenn. Pub. Acts ch. 914, § 2 (effective May 7, 1998). Thus, for
Class A felony offenses committed between July 1, 1995 and May 7, 1998, the
anomaly prevailed that the “presumptive” sentence was the midpoint in the
sentencing range, although the starting point for setting the sentence when both
enhancement and mitigating factors were present was the minimum sentence in the
range. The offense in the present case was committed on September 20, 1996 and
falls within that time period.
For cases such as the one at bar which arose during this time period,
this court resolved the anomaly in State v. Chance, 952 S.W.2d 848 (Tenn. Crim.
App. 1997). We held that the presumptive sentence or starting point for post-1995
amendment Class A felonies, including cases which involved both enhancement
and mitigating factors, is the midpoint in the applicable sentencing range. Chance,
952 S.W.2d at 850-51. Thus, despite the language that appeared in subsection (e)
of Code section 40-35-210 on September 20, 1996, the applicable starting point is
the midpoint, and in his brief, the defendant concedes as much.
With this explanation, I fully concur in the majority’s opinion.
________________________________
JAMES CURWOOD WITT, JR., JUDGE