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State v. Bartlett4/9/1998
SEPTEMBER 1997 SESSION
(DUI, Driving on Revoked License, Reckless Driving, Evading Arrest)
AFFIRMED AS MODIFIED
The defendant, James Ray Bartlett, was indicted for DUI, driving on a revoked license, five counts of reckless driving, resisting arrest, evading arrest and reckless endangerment. At the close of the state's proof, the trial court granted the defendant's motion for acquittal as to the charge of resisting arrest. The jury rendered guilty verdicts as to the remaining counts. After setting aside the conviction for reckless endangerment, the trial court sentenced the defendant to ten months for the DUI; four months and fifteen days for driving on a revoked license; five months for the reckless driving convictions, all of which were merged as one offense; and ten months for evading arrest. The transcript of the trial indicates sentences were ordered to be served consecutively for an effective sentence of twenty- nine months fifteen days with the minimum service at seventy-five percent. The judgment form indicates concurrent sentencing for all new convictions. The trial court revoked the defendant's community corrections sentence for prior convictions; these new sentences were ordered to be served consecutively to the prior offenses according to the judgment form.
In this delayed appeal, the defendant presents the following issues for our review:
(I) whether the evidence was sufficient to support his convictions;
(II) whether the trial court erred by allowing the state to introduce inadmissible character evidence in violation of Rule 404, Tenn. R. Evid.; and
(III) whether the trial court erred in the length and manner of sentence imposed.
We find no error and affirm the judgment of the trial court. The judgments are modified to the extent necessary to reflect concurrent sentencing for these offenses which are to be served consecutively to the prior convictions.
We preface our Discussion of the issues by the procedural history of this case. At the Conclusion of the sentencing hearing on December 13, 1994, the hearing on the motion for new trial was set for a date almost two months later. The motion for new trial was not timely filed. At the hearing on the motion, the defendant, on the advice of his counsel who saw no issues for appeal, "withdr w" his motion for a new trial before it was heard and informed the trial court that he would file a written "waiver." Thus, there was no hearing on the motion and no order of Disposition at that time. Defense counsel did not file notice of appeal.
On May 1, 1995, defendant's newly appointed appellate counsel filed a notice of appeal and the trial court granted a delayed appeal. Because no hearing on the motion for new trial had been conducted, the cause was remanded for that purpose. State v. James Ray Bartlett, C.C.A. No. 01C01-9509-CC-00302, Order (Tenn. Crim. App., at Nashville, Feb. 26, 1996). The trial court denied a new trial and this appeal followed.
At trial, Cliff Page, who was related to the defendant by marriage, testified that between 9:30 P.M. and 10:45 P.M. on March 4, 1994, he saw the defendant driving his stepdaughter's Sunbird near the Dairy Queen. Page informed Officer Richard Howell, who was parked nearby in his police cruiser, that he had seen the defendant driving "all over the road[,] both lanes." Later, Page, who acknowledged his dislike for the defendant, saw him driving the same car near the courthouse square. Page did not know how many passengers accompanied the defendant at the time and could not recognize them.
Sue Repasky, an employee of South Main Minimart, knew the defendant as
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