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State v. Hill11/7/2001
The Defendant, Michael Hill, pled guilty to driving under the influence of an intoxicant, and submitted sentencing for determination by the trial court. Included within the sentencing was a determination by the trial court as to whether or not Defendant's prior convictions for DUI could be used to sentence him as a multiple DUI offender pursuant to Tennessee Code Annotated section 55-10-403. The trial court determined that at least two of the prior DUI convictions could be used to sentence Defendant as a multiple third DUI offender. Defendant was sentenced to 11 months and 29 days, with all but 180 days suspended, and he was fined $3,500.00. On appeal, Defendant argues that all of the prior convictions for DUI were imposed more than ten years prior to his conviction for DUI in this case, and that he should be sentenced as a first offender. We agree, and reverse the judgment of the trial court and remand this case for a sentencing hearing as a DUI first offender.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded for New Sentencing Hearing.
Thomas T. Woodall, J., delivered the opinion of the court, in which Norma McGee Ogle, and Robert W. Wedemeyer, JJ., joined.
OPINION
On October 7, 1999, Defendant was indicted by the Shelby County Grand Jury for a DUI offense which occurred on February 21, 1999. Ultimately, the trial court imposed sentence upon Defendant at a sentencing hearing in August, 2000, after Defendant entered a plea of guilty to the underlying DUI offense on February 23, 2000.
The Defendant's three prior DUI convictions occurred on February 16, 1989, November 1, 1989, and November 16, 1989. Two of these convictions occurred within ten (10) years of the date of commission of the offense which is the subject of this appeal, on February 21, 1999. However, all three convictions occurred more than ten (10) years prior to the date of his conviction in this case, on February 23, 2000.
The Defendant generally argues that Tennessee Code Annotated section 55-10-403(a)(3) is unconstitutionally vague regarding when a Defendant is to be sentenced as a multiple DUI offender. He does specifically assert that the ten-year period to determine whether a prior conviction can be used to determine a multiple offender must be from the date of conviction of the prior offense to the date of conviction of the present offense. The State, on the other hand, argues that as long as the most recent offense (rather than conviction for that offense) occurs within ten years of a prior conviction, the prior conviction can be used to establish the status as a multiple DUI offender. A recent case by our court resolves the issue in favor of Defendant. In State v. Conway, ____ S.W.3d ____, No. M2000-01263-CCA- R3-CD, filed at Nashville, May 8, 2001, this court addressed the identical issue presented in this appeal. The court in Conway examined Tennessee Code Annotated section 55-10-403(a)(3) as follows:
Tenn. Code Ann. § 55-10-403(a)(3) was amended in 1998, and the amendment became effective May 11, 1998. See 1998 Public Acts, Chapter 926. The current statute reads as follows:
person who is convicted of a violation of Tenn. Code Ann. § 55-10-401 shall not be considered a repeat or multiple offender and subject to the penalties prescribed in subsection (a), if ten (10) or more years have elapsed between such conviction and any immediately preceding conviction for a violation. If, however, a person has been convicted of a violation of Tenn. Code Ann. § 55-10-401 within ten (10) years of the present violation, then such person shall be considered a multiple offender and is subject to the penalties
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