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State v. Fulgenzi7/27/1999
The defendant, Fred Fulgenzi, was indicted for vehicular assault and driving under the influence of an intoxicant (DUI) in separate indictments based on a single instance of alleged criminal behavior. The defendant pleaded guilty to DUI, and the trial court accepted his plea without objection from the state. The defendant then moved to dismiss the indictment for vehicular assault based on double jeopardy. Finding that the defendant's guilty plea had been fraudulently entered, the trial court set aside the plea and denied his motion to dismiss the vehicular assault indictment. In this interlocutory appeal, the defendant argues (1) that the prohibition against double jeopardy bars the state from prosecuting him for vehicular assault following the trial court's acceptance of his guilty plea to DUI and (2) that the trial court erred in setting aside his guilty plea. The state contends that double jeopardy is inapplicable in the present case and (2) even if double jeopardy was applicable, the defendant's plea was properly set aside, thereby negating any bar to further prosecution. After careful review, we respectfully reverse the judgment of the trial court and dismiss the defendant's indictment for vehicular assault, number 97-07010.
BACKGROUND
On July 3, 1997, the Shelby County Grand Jury returned indictment 97-07010 charging the defendant with vehicular assault. On the same day, the same grand jury returned a second indictment, number 97-07011, charging the defendant with driving under the influence of an intoxicant and with reckless driving. Both indictments relate to a single incident of the defendant's alleged criminal conduct that occurred on January 23, 1997.
On December 4, 1997, the defendant announced to the trial court his desire to plead guilty to indictment 97-07011, DUI. When the court inquired of defense counsel regarding Disposition of the vehicular assault charge, the defense attorney responded, "I think that's up to the State as to whether they want to proceed on that after this plea, or not." The state responded that it intended to proceed to trial on the vehicular assault indictment. Even so, the state did not object to the defendant's pleading guilty to indictment 97-07011, DUI. At a later hearing, the state candidly admitted that it did not object because it did not perceive any double jeopardy ramifications to the vehicular assault charge. The Assistant District Attorney stated that, had she known the law, she would have objected to the plea.
After advising the defendant of his constitutional rights, the trial court accepted the defendant's guilty plea. Immediately thereafter, the court conducted a sentencing hearing and sentenced the defendant to 180 days confinement, with all but thirty days suspended; eleven months and twenty-nine days probation; a $500 fine; revocation of his driver's license for one year; and mandatory attendance of alcohol safety courses and Alcoholics Anonymous meetings.
Immediately after the court pronounced sentence, the defense moved to dismiss the vehicular assault indictment:
DEFENSE ATTORNEY: "Your Honor, as to indictment 97-07010, I believe under the case of State v. Rhodes, 917 S.W.2d 708, Tennessee Criminal Court--Appellate Court, 1995, that case holds the premise that driving under the influence is a lesser included offense of vehicular assault."
And under the case law as it's written in the statute, under the notice of decisions, vehicular assault includes driving under the influence as a lesser included offense. Thus, for double jeopardy purposes, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence that
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