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State v. Frazier11/18/1999
The State appeals the ruling of the Cocke County Circuit Court finding subsection (n) of the DUI statute, Tenn. Code Ann. § 55-10-403(n) (1998), unconstitutional. After review, we conclude that no case or controversy exists empowering this court to render a decision on the merits. Accordingly, the appeal is dismissed.
The appellee, Candra Ann Frazier, entered a guilty plea in the Cocke County General Sessions Court to the offense of driving under the influence . Before imposing sentence, the general sessions court found that Tenn. Code Ann. §55-10-403(n) was unconstitutional as violating the equal protection clause. Tenn. Code Ann. § 55-10-403(n) provides:
Notwithstanding the provisions of this section to the contrary, in counties with metropolitan form of government and population in excess of 100,000 . . . the Judge exercising criminal jurisdiction may sentence a person convicted of violating the provisions of § 55-10-501, for the first time to perform two hundred hours of public service work in a supervised public service program in lieu of the minimum period of confinement required by the provisions of subsection (a).
It is conceded that the limiting language of subsection (n) applies only to Davidson County. The effect, therefore, permits those convicted in Davidson County to perform public service in lieu of the mandatory forty-eight hours confinement in jail. See Tenn. Code Ann. § 55-10-401(a). The general sessions court, invoking the doctrine of elision, struck only the language of section 55-10-403(n) that limited the provision's application to Davidson County. The appellee was sentenced to perform two hundred hours of community service work in Cocke County. The State appealed this decision to the Circuit Court of Cocke County.
On March 1, 1999, the Cocke County Circuit Court, after hearing the argument of counsel, the testimony of witnesses, and considering the evidence in the record, concluded that
there is no rational basis for the special exception for Davidson County to the general DUI statute and that Sub-Section (n) of Tenn. Code Ann. Section 55-10-403 violates equal protection in light of State v. Tester, 879 S.W.2d 823 (Tenn. 1994), and it further appearing to the Court that elision is not possible nor permissible . . .and therefore this Court declares subsection n of Tenn. Code Ann. § 55-10-403 to be unconstitutional. . . .[ ]
After striking subsection (n) from the statute, the trial court vacated the appellee Frazier's sentence to public service work and imposed a sentence of forty-eight hours jail confinement. The Attorney General of the State of Tennessee now appeals this decision.
In order to litigate a constitutional issue, there must first be a genuine "case" or "controversy" present. Our supreme court has stated that a court should not "pass on the constitutionality of a statute, or any part of one, unless absolutely necessary for the determination of the case and of the present rights of the parties to the litigation." County of Shelby v. McWherter, 936 S.W.2d 923, 931 (Tenn. App. 1996) (citing Estrin v. Moss, 430 S.W.2d 345, 352 (Tenn. 1968)). The right of the court to declare a legislative action unconstitutional can only be exercised when there is a proper case between opposing parties. The decision that a case is non-justiciable bars consideration of the merits, regardless of other equities which may be at issue. There will be no "case or controversy" or "justiciable controversy" sufficient to allow the court to adjudicate constitutional issues where: the parties are seeking only an advisory or abstract hypothetical opinion; the litigation is premature or the controversy unripe; the
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