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State v. Fulgenzi7/27/1999
); and each defendant subsequently attempted to avoid prosecution on the greater offense(s) by a claim of double jeopardy. As in those cases, no interest of this defendant's protected by double jeopardy principles was implicated where the defendant pled guilty to the lesser offense of DUI; and there "has been none of the governmental overreaching that double jeopardy is supposed to prevent." Johnson, 467 U.S. at 502, S.Ct. at 2542, 81 L.Ed.2d at 435.
LACK OF OBJECTION BY THE STATE
The one distinction between the case at bar and the other cases is the lack of formal objection by the state to the entry of defendant's guilty plea. I do not find this distinction dispositive, particularly in view of the inaccurate and misleading statements of defense counsel.
Based upon the state's failure to object to defendant's guilty plea, my colleagues distinguish Johnson and Nickens. Due to defense counsel's inaccurate and misleading statements not only to the prosecuting attorney, but especially in response to the trial court's direct inquiry regarding the status of the vehicular assault charge, a unique factual situation was created which causes me to question whether the presence or absence of a state objection is determinative in deciding the issue of double jeopardy. Nevertheless, if it does have any significance, I believe the inaccurate and misleading statements by defense counsel suffice as a substitute for an objection by the state.
In Grady v. Corbin, the United States Supreme Court remarked: "we need not decide whether our double jeopardy analysis would be any different if affirmative misrepresentations of fact by a defendant or his counsel were to mislead a court into accepting a guilty plea it would not otherwise accept." 495 U.S. 508, 512, n.4, 110 S.Ct. 2084, 2088, 109 L.Ed.2d 548, 559 (1990). That, based upon the record and the explicit findings of the trial court, is exactly what we have here. As such, I whole-heartedly agree with the principle enunciated in Johnson that defendant should not be entitled to use the Double Jeopardy Clause as a "sword" so as to "deny the State . . . one full and fair opportunity" to its day in court. 467 U.S. at 501-502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435.
I recognize that should this case be remanded for prosecution of the vehicular assault charge, and defendant is convicted, the DUI conviction could not stand. Rather, it would necessarily merge into the greater offense of vehicular assault resulting in a single conviction against defendant. See State v. Rhodes, 917 S.W.2d 708, 714 (Tenn. Crim. App. 1995).
Based on the foregoing, I respectfully DISSENT from the majority opinion and would AFFIRM the judgment of the trial court and REMAND for further proceedings.
JOE G. RILEY, JUDGE
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