IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1998 SESSION
FILED
June 2, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9706-CC-00213
Appellant, )
) LAUDERDALE COUNTY
VS. )
) HON. JOSEPH H. WALKER,
JAMES E. THOMPSON, ) JUDGE
)
Appellee. ) (Habitual Motor Vehicle Offender)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP ROBERT G. MILLAR
Attorney General and Reporter 802 Troy Avenue
P.O. Box 507
KENNETH W. RUCKER Dyersburg, TN 38025-0507
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
302 Market Street
P.O. Box 563
Somerville, TN 38068
OPINION FILED:
REVERSED AND REMANDED
JERRY L. SMITH,
JUDGE
OPINION
The State of Tennessee appeals the order of the trial court dismissing its
petition to have the defendant, James E. Thompson, declared an Habitual Motor
Vehicle Offender (HMVO) pursuant to Tenn. Code Ann. § 55-10-603. We
reverse the ruling of the trial court and remand the case for further proceedings
consistent with this opinion.
I.
The defendant was arrested on three (3) separate occasions in 1993 and
1994 for driving under the influence of an intoxicant and was convicted the same
years. The second and third convictions were adjudicated on the same day,
although committed on different days. The District Attorney General filed a
petition to have the defendant classified as an HMVO. A hearing was held
where the defendant, represented by counsel, admitted that the convictions were
valid. Although acknowledging the validity of the three (3) prior DUI convictions
in 1993 and 1994, the trial court declined to declare the defendant an HMVO
noting:
(1) all three (3) DUI convictions were treated as first
offenses by the respective courts; and
(2) the rehabilitative efforts and present
circumstances of the defendant indicate that an
HMVO declaration would be inappropriate.
The state appeals this ruling.
II.
Habitual offender status may be conferred upon one who, during a three
(3) year period, is convicted of three (3) or more of the offenses enumerated in
Tenn. Code Ann. § 55-10-603(2)(A)(Supp. 1997). Driving an automobile under
the influence of an intoxicant, Tenn. Code Ann. § 55-10-401, is one of the listed
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offenses. Tenn. Code Ann. § 55-10-603(2)(A)(viii)(Supp. 1997).
Tenn. Code Ann. § 55-10-603 does not allow discretion in the trial court.
If a defendant is found to have been validly convicted of the requisite number of
enumerated offenses within the applicable time period, the defendant will be
declared an HMVO. See Tenn. Code Ann. § 55-10-613(a). Rehabilitation efforts
and the present circumstances of a defendant are irrelevant to the HMVO
declaration.
The trial court erroneously considered the two (2) convictions adjudicated
on the same day as one (1) offense. The Habitual Offender Act does provide
that offenses committed on the same day will count as one offense for the
purposes of HMVO status. Tenn. Code Ann. § 55-10-604(b). The defendant,
however, was arrested for driving under the influence of an intoxicant on three
(3) separate occasions. The dates of adjudication are of no relevance except in
determining the applicable period in which the convictions must occur to have
HMVO status conferred. See Tenn. Code Ann. § 55-10-604(c).
Furthermore, the fact that the prior convictions were treated by the
respective courts as first offenses is irrelevant. Habitual offender status simply
requires three (3) convictions of the enumerated offenses, committed on different
dates, within the three-year period. See Tenn. Code Ann. §§ 55-10-603(2)(A),
604(Supp. 1997).
Accordingly, the judgment of the trial court is reversed and the case is
remanded for further proceedings consistent with this opinion.
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_________________________
JERRY L. SMITH, JUDGE
CONCUR:
_______________________________
GARY R. WADE, PRESIDING JUDGE
Not Participating1
JOE B. JONES, JUDGE
1
Presiding Judge Joseph B. Jones died on May 1, 1998. This court is indebted to Judge Jones for
his lifetime of contribution to the bench and bar of this State.
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