IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE 1998 SESSION FILED
June 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9802-CC-00050
Appellee, )
) McNairy County
V. )
) Honorable Jon Kerry Blackwood, Judge
)
TERRON PAUL BORDEN, ) (Violation of HMVO Order)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Lloyd R. Tatum John Knox Walkup
Tatum, Tatum & Weinman Attorney General & Reporter
Attorneys at Law
124 E. Main Street Peter M. Coughlan
P.O. Box 293 Assistant Attorney General
Henderson, TN 38340 425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
Ed Neal McDaniel
Assistant District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: ___________________
REVERSED AND DISMISSED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Terron Paul Borden, was arrested on February 28, 1997, in
McNairy County for driving on a revoked license, speeding, and violation of the
Motor Vehicle Habitual Offenders Act (HMVO). He retained a lawyer. Counsel
appeared with him in the McNairy County General Sessions Court on April 18,
1997. Plea negotiations ensued. The appellant entered a guilty plea to driving
on a revoked license. He waived his right to a preliminary hearing on the HMVO
charge. A true bill of indictment was returned by the McNairy County Grand Jury
on the HMVO charge on June 9, 1997.
The appellant filed a motion to dismiss in the McNairy County Circuit
Court based on double jeopardy provisions. The trial court denied the motion to
dismiss. After plea negotiations concluded, the appellant entered a guilty plea
to the HMVO violation but reserved the right to appeal a certified question of law
pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure. The
appellant perfected his appeal to this Court.
The issue before this Court is simple. Under the provisions of State v.
Green, 947 S.W.2d 186 (Tenn. Crim. App. 1997), can the appellant be convicted
of both driving on a revoked license and a violation under HMVO? We conclude
that he cannot be convicted of both crimes.
In Green, this Court found that driving on a revoked license is not a lesser
included offense of violating the habitual motor vehicle law. We further found
that under the provisions of Duchac v. State, 505 S.W.2d 237 (Tenn. 1973),
these two offenses are the “same” for double jeopardy purposes under the
Tennessee Constitution. The Court found that under the principles enunciated in
State v. Denton, 938 S.W.2d 373 (Tenn. 1996), double jeopardy principles were
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violated; and a defendant could not be convicted of both driving on a revoked
license and a violation of HMVO.
The Attorney General concedes this issue. The state agrees that
convicting this appellant of both crimes violates double jeopardy provisions.
The judgment of conviction of violation as a habitual offender under the
Motor Vehicle Habitual Offenders Act (HMVO) is reversed, and the indictment is
dismissed.
__________________________
PAUL G. SUMMERS, Judge
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CONCUR:
_____________________________
DAVID H. WELLES, Judge
_____________________________
JOE G. RILEY, Judge
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