 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Clever9/14/2001
Assigned on Briefs August 7, 2001
The defendant pled guilty to driving under the influence and was sentenced as a multiple offender. In this appeal as of right, the defendant alleges that (1) the trial court erred in finding that he was a third offender for purposes of sentencing, and (2) the DUI sentencing statute is unconstitutional because it is vague and has an ex post facto effect. After careful review, we affirm the defendant's conviction and sentence.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Alan E. Glenn, J., delivered the opinion of the court, in which David G. Hayes and Joe G. Riley, JJ., joined.
OPINION
DISCUSSION
On August 8, 1999, the defendant was charged in a three-count indictment, the first two counts for DUI, Tenn. Code Ann. § 55-10-401, and the third count for reckless driving, Tenn. Code Ann. § 55-10-205. The indictment alleged that he had two prior DUI convictions, both in Shelby County, on December 27, 1990, and on November 18, 1986, with the 1990 conviction being in the Shelby County Criminal Court and the 1986 conviction in the Shelby County General Sessions Court.
He pled guilty to driving under the influence of an intoxicant. At the sentencing hearing, the defendant not contesting his 1990 conviction, the State introduced evidence of his 1986 DUI conviction through the testimony of the general sessions court presiding judge and a general sessions court clerk. The trial court then sentenced the defendant as a third offender, a Class A misdemeanor, imposed a fine of $1100, and ordered that the defendant be confined for eleven months, twenty-nine days, with all but 120 days suspended and the balance to be served on probation. He was ordered to serve the 120 days consecutively day for day, and his license was suspended for three years. This appeal as of right results from that judgment.
ANALYSIS
Validity of the 1986 Conviction
Tennessee Code Annotated Section 55-10-403(a)(3) (Supp. 2000) provides for enhanced punishment for a defendant with prior DUI convictions within given time periods:
person who is convicted of a violation of § 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 § 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 imposed upon multiple offenders by the provisions of subsection (a). If a person is considered a multiple offender under this subdivision, then every conviction for a violation of § 55-10-401, within ten (10) years of the immediately preceding violation shall be considered in determining the number of prior offenses, but in no event shall a conviction for a violation occurring more than twenty (20) years from the date of the instant conviction be considered for such purpose.
The defendant argues that the trial court improperly sentenced him as a DUI third offender under Tennessee Code Annotated Section 55-10-403(a)(3), because there was inadequate proof as to his 1986 DUI conviction. Because of a policy of the Shelby County Public Records Commission, certain records of the Shelby County General Sessions Court were destroyed after ten years. The record of his first DUI conviction consists of a copy of the November 18, 1986, docket sheet of Judge Tim Dwyer and a certified copy of a computer-generated printout. The defen
Page 1 2 3 4 5 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|