 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Clever9/14/2001
ourt have already acknowledged that while the statute could have been more artfully drafted, it does not fail to give a person of ordinary intelligence fair notice of the conduct which is forbidden by the statute. See State v. Russell Snider, No. W2000-01240-CCA- R3-CD, 2001 WL 721030 (Tenn. Crim. App. at Jackson, June 26, 2001); see also State v. Sean W. Conway, No. M2000-01263-CCA-R3-CD, 2001 WL 487689 (Tenn. Crim. App. at Nashville, May 8, 2001). In both Snider and Conway, this court concluded that the ten-year period is measured from conviction to conviction. We also conclude that the defendant in this case qualifies as a multiple offender since his immediately preceding conviction is within the ten-year period, regardless of how the time frame is measured.
The defendant argues that this statute is unconstitutional, because at the time of his second DUI conviction in 1990, he could not have foreseen that the legislature would allow the courts to go back an additional ten years for purposes of enhancement. He further contends that had he known about the statute, he would not have pled guilty to the 1990 offense. Thus, the defendant argues that the statute is ex post facto.
In State v. Johnson, 970 S.W.2d 500, 505 (Tenn. Crim. App. 1996), this court rejected a similar ex post facto argument made by a defendant facing enhanced punishment as a multiple rapist because of a prior rape conviction:
t is well-established that penalty enhancing statutes only enhance the sentence for the triggering offense, rather than punish prior acts. See Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed. 1683 (1948) (citations omitted) (" he fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, [does not] make the Act invalidity retroactive."); State v. Bomar, 213 Tenn. 487, 376 S.W.2d 446, 447 (1964); Conrad v. State, 202 Tenn. 36, 302 S.W.2d 60 (1957). See also Suzanne M. McDonald, Foreseeability as a Limitation on the Retroactive Application of Judicial Decisions: Davis v. Nebraska, 26 CREIGHTON L.REV. 931, 948-49 (1993); Joel W.L. Millar, Nichols v. United States, The Right to Counsel, and Collateral Sentence Enhancement: In Search of a Rationale, 144 U.PA.L.REV. 1189, 1191-93 (1996). The punishment is enhanced for the latest crime alone.
Since the defendant received multiple offender punishment for an offense committed after enactment of the DUI enhanced punishment statute, his claim is without merit that the statute cannot utilize his 1990 DUI conviction because he would not have pled guilty had he known of the enhancement possibilities. He is not being punished anew for his prior convictions, but rather for a subsequent offense. Thus, we conclude that the DUI statute, enhancing punishment for future offenses based upon prior DUI convictions, is not ex post facto.
CONCLUSION
After careful review of the record, we conclude that the State presented sufficient evidence of the defendant's 1986 DUI conviction to use it for enhancement purposes. We also conclude that Section 55-10-403(a)(3) is not void for vagueness, nor does it violate ex post facto prohibitions. Accordingly, we affirm the judgment of the trial court.
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.
|
|