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State v. Biskner11/13/2001
Assigned on Briefs July 25, 2001
Defendant was convicted of driving under the influence ("DUI"), fourth or subsequent offense, driving while license revoked, and child endangerment. In this appeal, Defendant challenges all convictions on the ground that the trial court's refusal to bifurcate the trial proceedings violated her right to a fair trial. Defendant also argues that recently amended Tennessee Code Annotated section 55-10-403(a)(1) is unconstitutional and that her sentence is excessive. After a review of the record and applicable law, we reverse Defendant's convictions and remand this case for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed.
Thomas T. Woodall, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant, Janice Carol Biskner, was convicted by a Hamilton County jury of child endangerment, Tenn. Code Ann. § 55-10-414(1), a Class A misdemeanor; driving while license revoked, Tenn. Code Ann. § 55-50-504, a Class B misdemeanor; and driving under the influence of an intoxicant ("DUI"), fourth or subsequent offense, Tenn. Code Ann. § 55-10-401, a Class E felony. The trial court imposed a sentence of eleven months and twenty-nine days for each of Defendant's two misdemeanor convictions (an improper sentence for the driving on a revoked license conviction), a sentence of two years for Defendant's felony DUI conviction, and ordered all sentences to be served concurrently for an effective sentence of two years in the Tennessee Department of Correction.
On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing to bifurcate Defendant's trial proceedings, thereby allowing the jury to hear prejudicial evidence of Defendant's prior DUI convictions which compromised her right to a fair trial; (2) whether the recent amendment to Tennessee Code Annotated section 55-10-403(a)(1), regarding penalties for DUI convictions, violates the prohibitions against ex post facto laws in our state and federal constitutions; and (3) whether the trial court erroneously applied sentencing enhancement factors in determining Defendant's sentences.
Based on the recent decision of this Court in State v. Ronnie Lamar Evans, No E2000-00327-CCA-R9-CD, 2001 WL 501414, Hamilton County (Tenn. Crim. App., Knoxville, May 11, 2001) no perm. to app. filed, we reverse Defendant's conviction for felony DUI and remand this matter for a new trial in which guilt or innocence is determined in a proceeding separate from that which requires the jury to hear evidence concerning prior DUI convictions. In addition, we reverse Defendant's misdemeanor convictions for the reasons stated herein, and, in the event of further review and/or for guidance on remand, we find that the penalties imposed under the 1998 amendment to Tennessee Code Annotated section 55-10-203(a)(1) do not violate an accused's constitutional rights against ex post facto laws and that certain enhancement factors were improperly applied to Defendant's felony DUI sentence.
FACTUAL BACKGROUND
On July 14, 1998, the East Ridge Police Department dispatcher alerted the officers in the vicinity of the East Ridge movie theater to be on the lookout for a Jeep with a specific license tag number. Lieutenant Barry Yates was the first to spot the Jeep. It was traveling south on McBrien Road and, in Yates' opinion, the Jeep was being driven "erratically." Once behind the Jeep, Yates turned on his blue lights and siren in an attempt to pull the vehicle over. The driver appeared oblivious to his presence, however, and continued
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