IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
January 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 03-C-01-9701-CR-00025
)
) Sullivan County
v. )
) R. Jerry Beck, Judge
)
) (Sentencing)
TRAVIS E. BIRCHFIELD, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Cary C. Taylor John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 148 500 Charlotte Avenue
Kingsport, TN 37662 Nashville, TN 37243-0497
Clinton J. Morgan
Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
Joseph E. Perrin
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED:__________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
O P I N I ON
The appellant, Travis E. Birchfield (defendant), was convicted of aggravated assault,
a Class C felony, by a jury of his peers. The trial court found the defendant was a
persistent offender and imposed a Range III sentence consisting of confinement for eleven
(11) years in the Department of Correction. In this court, the defendant presents one issue
for review. He contends the trial court committed error of prejudicial dimensions by finding
he was a persistent offender. He argues there were only four felony convictions which
could be used to determine the range in this case. In this case, five Class E felonies were
statutorily mandated as a prerequisite to classifying an accused as a persistent offender.
After a thorough review of the record, the briefs submitted by the parties, and the law
governing the issue presented for review, it is the opinion of this court that the judgment
of the trial court should be affirmed.
The following convictions were contained in the State of Tennessee’s notice of
intent to seek enhanced punishment:
OFFENSE CASE NO. COUNTY DATE OF OFFENSE
Forgery 11057 Carter 6/05/93
Theft over $500 11058 Carter 6/17/93
Forgery 11350 Carter 11/19/93
Forgery 21064 Washington 3/26/94
Forgery 21064 Washington 3/27/94
Forgery 21064 Washington 3/27/94
The parties agreed the two forgery offenses occurring on March 27, 1994, constituted but
one offense. Tenn. Code Ann. § 40-35-107(b)(4)(1997 Repl.) Defense counsel was given
time to review the state’s documentation of the Washington County convictions. Defense
counsel subsequently advised the trial court he thought there were only four prior
convictions, but he agreed there were five Class E felonies. Counsel stated: “I had him
down as four prior convictions, four felony convictions, but apparently, I have miscounted.”
The trial court gave the defendant the opportunity to present proof to challenge the
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number of prior felony convictions which could be used to be establish the appropriate
range. Defense counsel declined the invitation. Counsel stated: “No, those [the felonies
set forth hereinabove] are correct.”
The statements made by defense counsel were tantamount to a stipulation as to the
number of prior felonies which could be used to establish the appropriate range. The trial
court found there were five prior Class E felonies, and determined the defendant was a
persistent offender beyond a reasonable doubt. Tenn. Code Ann. § 40-35-107(c)(1997
Repl.).
In this court, the defendant contends for the first time the three Washington County
forgery convictions, which occurred on March 26, 1994, and March 27, 1994, constituted
a single conviction within the meaning of Tenn. Code Ann. § 40-35-107(b)(5)(1997 Repl.).
The record does not support this contention.
The statute in question states:
(4) Convictions for multiple felonies committed as part of a
single course of conduct within twenty-four (24) hours
constitute one (1) conviction for the purpose of determining
prior convictions; however, acts resulting in bodily injury or
threatened bodily injury to the victim or victims shall not be
construed to be a single course of conduct. . . .
If the defendant was of the opinion the three forgery felonies from Washington
County constituted but one offense, the defendant should have presented evidence to
establish the times when the offenses were committed. The defendant was given the
opportunity to present evidence to support his contention. Instead, the trial court was told
by defense counsel there were in fact five felony convictions which could be used to
establish the range.
The trial court found the defendant was a persistent offender beyond a reasonable
doubt as required by the statute. This court cannot set such a finding aside or grant a new
sentencing hearing when the record is silent regarding when the offenses occurred. In
short, there is nothing to establish that the offense of March 26, 1994, occurred within
twenty-four hours of the March 27, 1994, offenses. The fact the three offenses were
contained as separate counts in the same indictment is irrelevant to the inquiry.
This court concludes the trial court properly found the defendant was a persistent
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offender and sentenced him accordingly.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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