State v. Francis9/19/2001
Assigned on Briefs July 25, 2001
In an indictment returned by the Morgan County Grand Jury, Defendant, Charles R. Francis, was charged with fourth offense DUI. Count 1 of the indictment alleged that the triggering offense of DUI occurred on December 10, 1998. Count 2 of the indictment alleged that he had previously been convicted of DUI on three separate occasions in Morgan County, Tennessee. The Defendant entered a "blind plea" to DUI, fourth offense, and sentencing was submitted to the trial court for a later hearing. At the sentencing hearing, the trial court ruled that Defendant was convicted of the Class E felony of DUI, fourth offense, ordered a sentence of two (2) years, with service by split confinement of 150 days in the county jail, and the balance of the sentence to be served in the Community Corrections program. Asserting that he should have been sentenced for commission of a Class A misdemeanor DUI, fourth offense, rather than a Class E felony, Defendant has appealed. The original judgment entered by the trial court reflected conviction of a Class A misdemeanor, but the judgment was later amended to reflect conviction of a Class E felony, in accord with the trial court's ruling at the conclusion of the sentencing hearing. We affirm the amended judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.
Thomas T. Woodall, J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Robert W. Wedemeyer, JJ., joined.
OPINION
The Defendant argues that the trial court erroneously ruled that his fourth offense DUI should be classified as a Class E felony, pursuant to Tennessee Code Annotated section 55-10-403(a)(1). Specifically, Defendant contends that, in order for the offense to be classified as a Class E felony, one of the prior violations, as alleged in count 2 of the indictment, must have occurred after July 1, 1998, the effective date of an amendment to Tennessee Code Annotated section 55- 10-403(a)(1). The relevant portion of that statute, as amended effective July 1, 1998, reads as follows:
Notwithstanding any other provision of law to the contrary, the fourth or subsequent conviction shall be a Class E felony punishable by a fine of not less than three thousand dollars ($3,000) nor more than fifteen thousand dollars ($15,000); by confinement for not less than one hundred fifty (150) consecutive days, to be served day for day, nor more than the maximum punishment authorized for the appropriate range of a Class E felony; and the court shall prohibit the person from driving a motor vehicle for a period of five (5) years. For the provisions of the preceding sentence to apply, at least one (1) of the violations of § 55-10-401 must occur on or after July 1, 1998.
Tenn. Code Ann. § 55-10-403(a)(1) (Supp. 2000).
The State argues on appeal that the plain language of the statute requires that a defendant have only one violation to occur on or after July 1, 1998. The State further asserts that had the legislature intended to require that one of a defendant's prior violations occur on or before July 1, 1998, it would have stated such, as it did in subsection (k)(2) of § 55-10-403. Tenn. Code Ann. § 55-10-403(k)(2) states:
In order for the provisions of subdivision (k)(1) to be applicable to a vehicle, the violation making the vehicle subject to seizure and forfeiture must occur in Tennessee and at least one (1) of the previous violations must occur on or after January 1, 1997, and the second offense after January 1, 1997, occurs within five (5) years of the first offense occurring after January 1, 1997. (emphasis added).
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