 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Reid9/7/2001
evidence submitted to the trial court by the defendant and the state was the pre-sentence report. Since the pre-sentence report is not in the record, we must presume that the trial court's determination was correct. State v. Keen, 996 S.W.2d 842, 844 (Tenn. Crim. App. 1999).
V. FINE
In his last issue, the defendant argues that the fine of $500 assessed against him by the trial judge is improper because he did not waive his right to have a jury set a fine in excess of $50. Article VI, §14 of the Tennessee Constitution provides:
No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.
Tenn. Code Ann. § 40-35-301(b) prescribes the method by which a fine in excess of $50.00 should be fixed. A trial judge may not set a fine of more than $50 unless: (1) the defendant waives his right for a jury determination of the fine, or (2) the fine is statutorily specified and allows no judicial discretion in its imposition. State v. Martin, 940 S.W.2d 567, 570 (Tenn. 1997).
We have reviewed the record in the instant case, including the technical record, the transcript of the evidence, arguments by counsel, the jury charge, and the trial court's minutes and orders. The jury charge only asked the jury to determine guilt or innocence and made no mention of a fine. The verdict of the jury as announced in open court, apparently without the use of a written verdict form which we customarily see, only made a finding of guilt without mention of a fine. Therefore, nothing in the record indicates there was a waiver by the defendant of his right to have the fine fixed by the jury. The trial judge was required to exercise discretion in setting the fine because the statute prescribes a minimum fine as well as a maximum fine. Therefore, the trial judge lacked the authority to set a fine over $50. Thus, we remand this cause for the proper assessment of the fine. If the defendant does not properly waive the right of a jury to assess the fine, a new jury must be empaneled to fix the amount of the fine. See id. (holding the remedy for violation of the right for jury assessment of a fine is a remand for the empaneling of a new jury to fix the amount of the fine).
CONCLUSION
Based upon our analysis, the case is remanded for the proper assessment of the fine. In all other respects, the judgment of the trial court is affirmed.
|