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State v. Neely3/2/1999
The defendant, William M. Neely, was convicted of DUI, fourth offense. The trial court imposed an eleven month, twenty-nine day sentence to be served at one hundred percent. He presents two general issues for our review:
(I) whether the state proved his prior DUI convictions sufficiently to support the enhanced sentence; and
(II) whether the trial court erred by failing to dismiss the charges on the grounds of unreasonable delay.
We affirm the judgment of the trial court.
(I)
The defendant's first complaint is that the state did not adequately prove his prior DUI convictions. Therefore, he reasons, he cannot receive an enhanced sentence as a repeat offender.
A transcript of the guilt phase of the trial is not part of the record. In the second phase, the state presented the testimony of Kevin Sanders, the deputy court clerk, who testified that three court files contained records indicating that a William Michael Neely, date of birth March 17, 1948, had three prior DUI convictions entered on March 29, 1990. Sanders testified that the files established that one of the offenses occurred on May 8, 1988, one on August 29, 1989, and one on March 4, 1989. In those proceedings, the defendant was declared a six-time DUI offender.
Our DUI statute, of course, provides for enhanced penalties for repeat offenders. The law in effect when the defendant committed the offense, on June 10, 1996, provided that a person who commits a third or subsequent DUI is subject to a "fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) [and confinement] for not less than one hundred twenty (120) days nor more than eleven (11) months and twenty-nine (29) days ...." Tenn. Code Ann. § 55-10-403(a)(1) (amended in 1998 to make DUI fourth offense a Class E felony).
When the defendant is charged as a repeat DUI offender, the required procedure is as follows:
" bifurcated proceeding is mandated. The first phase of the proceeding addresses the issue of the guilt or innocence of the defendant. ... If the jury returns a verdict of guilty, the jury, not the trial Judge, must determine whether the defendant is a second or subsequent offender beyond a reasonable doubt." State v. Sanders, 735 S.W.2d 856, 858 (Tenn. Crim. App. 1987).
A finding that the defendant is a subsequent offender qualifies the offender for enhanced punishment but does not constitute "a new offense." Tenn. Code Ann. § 55-10-403(a)(2). See also State v. Ward, 810 S.W.2d 158, 159 (Tenn. Crim. App. 1991). In Ward, this court observed that the increased punishment provisions of our DUI statute are "analogous to the habitual criminal statutes which our courts have consistently held do not create a new offense but only provide for an enhanced punishment." Id.
The defendant contends that the proof was inadequate because the state should have produced the court's minutes reflecting entry of the prior convictions, rather than relying on the testimony of the court clerk. He cites Reed v. State, 581 S.W.2d 145 (Tenn. Crim. App. 1978), a case in which this court determined that the deputy clerk's testimony was insufficient to establish prior convictions.
In Reed, the defendant was convicted of shoplifting. At the second phase of the trial, the state attempted to show the defendant had three prior convictions, thus establishing a status of repeat offender. 581 S.W.2d at 146. The deputy clerk testified to information contained in the "court's 'yellow jackets' concerning these prior cases." Id. at 147. Copies of the entries made on the jackets of the files were also entered into evidenc
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