 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
05/19/97 STATE TENNESSEE v. RONNIE W. NAIL5/19/1997
The defendant, Ronnie W. Nail, was convicted in a jury trial in the Circuit Court for Rhea County of driving while under the influence of an intoxicant (DUI) and leaving the scene of an accident, both offenses being misdemeanors. He was sentenced to the minimum sentence available for a first offense DUI and fined two dollars for leaving the scene. He appeals as of right and claims that he was entitled to a new trial because an adequate record of the trial proceedings could not be prepared so as to allow the successor Judge to rule on his motion for new trial. This case has traveled a tortuous route since the defendant's arrest in 1985 -- a route that we need not fully recount here. Unfortunately, the journey does not end here, because we must vacate the judgments of conviction and remand the case for further proceedings.
The defendant was convicted in March 1989 in a jury trial over which Judge Paul A. Swafford presided. On October 19, 1989, Judge Swafford sentenced the defendant and on November 20, 1989, the defendant filed his motion for new trial. The motion remained pending when Judge Swafford was defeated in his reelection effort and Judge Thomas W. Graham was elected to replace him beginning September 1, 1990. The motion was heard in July 1992 and the order denying it was entered in June 1993.
The issue raised by the defendant stems from his claim that no record of the trial exists. From this he asserts that it was impossible for the successor Judge to rule upon the motion for new trial and, therefore, that a new trial was required. He relies upon Rule 25(b), Tenn. R. Crim. P., which provides as follows:
After Verdict of Guilt. If by reason of absence, death, sickness or other disability the Judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict of guilt, any other Judge regularly sitting in or who may be assigned to the court may perform those duties. If the successor Judge is satisfied that he cannot perform those duties because he or she did not preside at the trial or for any other reason, the successor Judge may exercise the discretion to grant a new trial.
In response the state notes that the rule gives discretion to the Judge and asserts that no abuse of discretion has occurred because the lack of an adequate record for the successor Judge to review is attributable to the defendant. Although the defendants failure to present an adequate record of the case for appellate review would be fatal, we believe that the state misapprehends the obligation relative to entry of a valid judgment, one for which the trial court must approve the verdict.
At the new trial motion hearing, the defendant's trial attorney, who no longer represented the defendant, testified that he did not hire a court reporter to preserve the proceedings at trial because he thought that the state was to provide one for the defendant's misdemeanor trial. He said that when he learned in court that a reporter was not present, he asked the circuit court clerk, John E. Fine, to record the proceedings and that Mr. Fine did so. He stated that the trial lasted all day and that four or five tapes were used. He said that Mr. Fine provided the tapes and operated the recorder. He testified that after the trial, Mr. Fine retained the tapes. He explained that he did not need possession of the tapes until the decision to appeal was made and he indicated that he thought that the tapes would be made part of the record or court file.
The defendant testified that Mr. Fine made the tapes during the trial and stopped both sides in order to change the tapes. He stated that at the end of the trial, Mr. Fine took the t
Page 1 2 3 4 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|