State v. Slate2/19/1999
The defendant, John Wayne Slate, was convicted of second degree murder. The trial court imposed a sentence of twenty-five years. In this appeal of right, the defendant presents the following issues for review:
(1) whether the trial court erred by ordering the defendant to serve twenty-five years in prison; and
(2) whether the trial court erred by signing a judgment that ordered an effective sentence of thirty-three years.
We affirm the sentence of the trial court. The sentence must be modified to provide for a twenty-four year sentence, a consecutive three-year sentence and a concurrent five-year sentence.
In 1989, the defendant was convicted in a jury trial of first degree murder, attempted jail escape, and possession of a firearm while incarcerated. The trial court imposed a life sentence for first degree murder enhanced by five years for the use of a firearm during the commission of the offense. A three-year consecutive sentence was imposed for attempted jail escape and a five-year concurrent sentence was imposed for the possession of a firearm while incarcerated. In the initial appeal, this court affirmed the judgment of the trial court. State v. John Wayne Slate, No. 101 (Tenn. Crim. App., at Knoxville, Nov. 1, 1989). Application for permission to appeal to the supreme court was denied on March 5, 1990. Thereafter, the defendant's right of post-conviction relief in the trial court was denied and the defendant appealed to this court. A panel of this court determined that the evidence of deliberation was insufficient, reversed the first degree murder conviction, and remanded the cause to the trial court for entry of a judgment of conviction for second degree murder and resentencing. John Wayne Slate v. State, No. 03C01-9201-CR-00014 (Tenn. Crim. App., at Knoxville, Apr. 27), app. denied Concurring in results only, (Tenn., Oct. 24, 1997). On remand, the trial court imposed a sentence of twenty-five years under the Sentencing Reform Act of 1989. On appeal, this court reversed and remanded the cause for resentencing because the trial court failed to calculate the defendant's sentence under both the 1989 and 1982 Acts as required by the holding in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993). State v. John Wayne Slate, C.C.A. No. 03C01-9511-CC-00352, slip op. at 5 (Tenn. Crim. App., at Knoxville, Oct. 18, 1996), app. denied, (Tenn., Jan. 27, 1997). On remand, the trial court imposed a sentence of twenty-five years for second degree murder. The judgment form reflected an effective sentence of thirty-three years due to the other offenses.
Tennessee Code Annotated § 40-35-117 provides that persons sentenced after November 1, 1989, for crimes committed between July 1, 1982, and November 1, 1989, must be sentenced under the 1989 Act, " nless prohibited by the United States or Tennessee Constitution." Tenn. Code Ann. § 40-35-117(b). Tenn. Code Ann. § 39-11-112 provides that if the 1989 Act provides for a "lesser penalty," the lesser punishment shall be imposed. In Pearson, our supreme court set forth guidelines for making certain the sentence imposed is constitutional:
" n order to comply with the ex post facto prohibitions of the U.S. and Tennessee Constitutions, trial court Judges imposing sentences after the effective date of the 1989 statute, for crimes committed prior thereto, must calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in their entirety, and then impose the lesser sentence of the two." 858 S.W.2d at 884.
In this direct appeal of the sentence, the defendant argues that the trial court erroneously applied two enhancement factors, failed to apply several mitigating factors,
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