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State v. Gober9/18/2001
Assigned on Briefs August 21, 2001
The issue is how to compute the number of prior offenses available for consideration in determining multiple offender status pursuant to Tennessee Code Annotated section 55-10-403(a)(3). We conclude to compute the number of prior convictions available for consideration, the court must first determine whether the defendant has any prior convictions occurring within ten years of the date of the instant conviction. If so, all prior convictions shall be counted occurring within twenty years of the date of the instant conviction provided no period greater than ten years has elapsed between any two preceding prior convictions. An example is contained in the opinion. We reverse the trial court's order amending the indictment to charge third offense and reinstate the original indictment charging ninth offense driving under the influence .
Tenn. R. App. P. 9; Judgment of the Circuit Court Reversed
John Everett Williams, J., delivered the opinion of the court, in which Gary R. Wade, P.J., and Alan E. Glenn, J., joined.
OPINION
Facts
On February 3, 2000, the defendant, Tracy Gober, was indicted, in Bradley County, in count one for driving under the influence , ("DUI"). See Tenn. Code Ann. § 55-10-401. Count two of the indictment alleged that the defendant had been previously convicted of DUI and had thus committed a ninth DUI offense. See Tenn. Code Ann. § 55-10-403(a)(3). The indictment listed the following eight prior convictions:
5/23/1984 Knox County, Tennessee
4/17/1986 Anderson County, Tennessee
4/17/1986 Anderson County, Tennessee
8/11/1986 Clayton County, Georgia
6/11/1987 Cobb County, Georgia
6/11/1987 Cobb County, Georgia
8/06/1992 McMinn County, Tennessee
5/14/1998 Bradley County, Tennessee
The defendant moved to dismiss count two of the indictment. Defense counsel stated:
When I look at the indictment, I see that Mr. Gober's immediately preceding conviction is May 14, 1998. If I go ten years back there is only one other additional DUI, that being on August 6, 1992. So I would ask the court to dismiss the indictment. He is really only charged with third offense DUI, the way I have interpreted the statute.
The trial court agreed with the defendant's contention and ordered the indictment amended to charge third offense DUI. The State sought an interlocutory appeal pursuant to Rule 9, Tennessee Rules of Appellate Procedure, which was granted. Application for permission to appeal was granted by this court and filed March 9, 2001. Analysis
The controlling statute is Tennessee Code Annotated section 55-10- 403(a)(3), which sets forth the appropriate method for calculating multiple DUI offenses as follows:
For purposes of this section, a person who is convicted of a violation . . . 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 . . . 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 . . . within ten (10) years of the immediately preceding violation shall be considered in determining the number of prior offenses, but in
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