State v. Mixon

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

FILED
STATE OF TENNESSEE, ( FOR PUBLICATION
( January 19, 1999
Appellee, ( Filed: January 19, 1999
( Cecil W. Crowson
( Appellate Court Clerk
v. ( Chester Criminal
(
( Hon. John Franklin Murchison,
VAUGHN MIXON, ( Judge
(
Appellant. ( No. 02S01-9804-CC-00034

For State-Appellee: For Defendant-Appellant:

John Knox Walkup George Morton Googe,
Attorney General & Reporter District Public Defender
26th Judicial District
Michael E. Moore Jackson, Tennessee
Solicitor General

Elizabeth T. Ryan
Assistant Attorney General
Nashville, Tennessee

James G. Woodall
District Attorney General
Twenty-Sixth Judicial District
Jackson, Tennessee

Don Allen
Assistant District Attorney General
Jackson, Tennessee

OPINION

REVERSED IN PART;
AND REMANDED. DROWOTA,
J.
 We granted this appeal to determine: (1) when a judgment becomes “final”

and triggers the one-year coram nobis statute of limitations; and (2) whether a

petition for writ of error coram nobis may be filed in the trial court during the

pendency of an appeal as of right from a conviction.

We conclude that a judgment becomes final, and the one-year coram nobis

statute of limitations begins to run, thirty days after entry of the judgment in the

trial court if no post-trial motion is filed, or upon entry of an order disposing of a

timely filed post-trial motion. As a result, in most instances, to be timely, a petition

for writ of error coram nobis generally will be filed during the pendency of an

appeal as of right.

Therefore, to promote judicial economy, when a convicted defendant files a

petition for writ of error coram nobis in the trial court, he or she must

simultaneously file a motion in the appellate court to stay the appeal as of right

until conclusion of the coram nobis proceeding in the trial court. The motion to

stay will generally be granted by the appellate court. If, as in this case, an appeal

is taken from the trial court’s denial of the petition for writ of error coram nobis, it

will be consolidated with the appeal as of right. Because coram nobis is an

extraordinary remedy to which resort should be had only if no other remedy is

available, upon review, the appellate court must first address the issues raised in

the defendant’s appeal as of right. If none of those issues are meritorious, the

appellate court must then address the issues raised in the defendant’s coram

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nobis appeal.

In this case, a majority of the Court of Criminal Appeals 1 failed to address

the issues raised by the defendant in his appeal as of right. Having considered

those issues to prevent needless litigation, we conclude that the trial court erred

by allowing the State to impeach the defendant’s testimony with a prior sexual

battery conviction, and the error is not harmless. Accordingly, the judgment of the

Court of Criminal Appeals, which remanded this case to the trial court for further

findings on the coram nobis claim, is reversed. The defendant’s convictions of

attempted rape, attempted incest, and sexual battery are vacated and the case is

remanded to the trial court for a new trial. 2 Because of the double jeopardy

prohibition against multiple punishments for the same offense, the defendant,

upon retrial, may not be convicted of both attempted rape and sexual battery.

I.

FACTUAL BACKGROUND

1
The majority opinion was authored by Judge Smith, with Judge Jones (deceased)
concurring. Judge Tipton dissented. In his dissent, Judge Tipton addressed only those issues
raised by M ixon in his a ppeal as of right.

2
The new trial is granted with respect to the defendant’s convictions for attempted rape,
attempted incest, and sexual battery. Mixon has not challenged in this Court his convictions of
public intox ication and evading arrest, an d those conviction s rem ain intact.

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 Following a jury trial the defendant, Vaughn Mixon, was convicted of

attempted rape, attempted incest, sexual battery, public intoxication, and evading

arrest. The proof at trial consisted of the testimony of the victim, A.M.,3 the

defendant’s thirteen-year-old daughter. The victim testified that on April 16, 1994,

she drove her father to visit one of his friends. Her father was unable to drive

because he had consumed approximately eighteen cans of beer and was

intoxicated.

After Mixon visited awhile with his friend, he and A.M. began the drive back

home. The incident at issue in this appeal allegedly occurred on the return trip

when the defendant instructed the victim to drive down a dirt road and stop the

truck. The victim drove approximately one-half mile down the road and stopped

the truck. The victim said the defendant had previously asked her if she had ever

seen him naked, and once the truck was stopped, the victim said the defendant

reached over, turned the key back on so the radio would play, placed his hand on

her inner thigh, and commented that he “wanted a piece of pussy.” The victim

said she thought her father intended to rape her so she opened the truck door and

jumped from the truck. As she was leaving the truck, the defendant grabbed her

clothing and said he was only joking. The victim did not believe the defendant

was joking, so she left the truck and ran down the dirt road and onto the main

highway.

3
It is the policy of this Court to refrain from using the name of a minor who has been the
victim of a sex crime.

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 The victim ran approximately one-half mile down the main highway before

she encountered another car driven by Keith Middleton, a reserve deputy with the

Chester County Sheriff’s Office. Middleton was driving an unmarked car and was

not in uniform at the time of this incident. Middleton testified that he saw the

victim running “as fast as she could go” down the side of the highway. By the time

Middleton turned his vehicle around and returned to offer assistance, the

defendant was driving along beside the victim. When Middleton parked his car,

the victim ran toward him crying and hysterically pleading for help. A.M. asked

Middleton not to leave her alone with the defendant. Although Middleton

repeatedly inquired as to the problem, neither the victim nor the defendant

responded to his inquiries. The defendant told Middleton to mind his own

business, and eventually, Middleton returned to his car. As he drove away,

Middleton observed the defendant grab the victim by the arm and throw her into

the truck. The victim testified that once the defendant had forced her back into

the truck he warned her not to “narc on him.”

When Middleton called the Sheriff’s Department to report the incident and

to give a description of the vehicle, he was dispatched to the Mixon home on

Carroll Road to investigate a possible rape. When Middleton arrived, two other

deputies were already at the scene. The victim was also at the residence and told

the deputies that the defendant had attempted to rape her. When the defendant

heard these charges, he fled. Middleton and another deputy located him in a

drainage ditch about 200 yards from his home. He ran again, but was

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apprehended at a nearby outbuilding. When apprehended, the defendant’s

speech was slurred and he smelled of alcohol. The defendant violently kicked the

doors and windows of the patrol car and was eventually sprayed with mace.

Mixon testified in his own behalf and denied both that he had touched his

daughter and that he had made sexually explicit comments to her. Mixon

admitted that he was intoxicated on the day of the incident. He also admitted that

he had asked the victim to stop the truck on the dirt road on the trip home, but

said he had done so only because he needed to again relieve himself. When

questioned about the victim’s hysterical behavior, Mixon said they had been

arguing about an incident which occurred in Mississippi and about the victim

dating an eighteen-year-old man. Mixon said A.M. made the allegations against

him because he had intended to remove her from public school and enroll her in a

private Christian academy to stop the relationship.

Mixon admitted that he had fled from the deputies when the victim told

them that he had attempted to rape her, but said he had done so only because he

had not wanted to be arrested for a crime he had not committed. The defendant

explained that he previously had been arrested when the victim had falsely

accused him of physically abusing her. Mixon said he had been injured when he

fled, and attributed his violent behavior in the patrol car to the pain from his

injuries and to being intoxicated. In response to a question by the State on cross-

examination, the defendant acknowledged that he had been previously convicted

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of sexual battery in Mississippi in 1986. The defendant admitted being guilty of

public intoxication and evading arrest. However, the defendant strongly

maintained that he was not guilty of the sexual assault crimes with which he had

been charged.

Based upon this proof, the jury, on November 16, 1994, found the

defendant guilty of attempted rape, attempted incest, sexual battery, public

intoxication, and evading arrest. On March 20, 1995, the trial court imposed

sentences for each of the convictions and denied the defendant’s previously filed

motion for a new trial. On April 18, 1995, the defendant filed a notice of appeal.

The case was scheduled to be heard by the Court of Criminal Appeals on January

3, 1996, in Jackson.

However, on December 22, 1995, the defendant filed in the trial court a

petition for writ of error coram nobis. The petition was accompanied by a sworn

affidavit from the victim in which she recanted her trial testimony, and stated as

follows:

1. My name is [A.M.]. I am fifteen (15) years old, and I know the
difference between telling the truth and telling a lie.
2. I am the alleged victim of Vaughn Mixon, my father, whose trial
was held on November 16, 1994 and is on appeal.
3. No one has promised me anything or threatened me in anyway to
make this oath.
4. I testified at trial that my father said he “wanted a piece of pussy.”
He did say that, but he was talking about his girlfriend, not me. I
knew that when he said it.
5. The only time he touched my leg that day was when he was
trying to reach for the keys from the ignition. I did not think he was
trying to feel my legs in a sexual way.

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 6. When I was running away from the truck, it was because we had
been arguing about my boyfriend at the time. He was older and
Daddy didn’t want me going out with him. Daddy had put me in a
private school to keep me away from the high school boys. I was
angry and showing out by acting like I was walking home. I was not
scared of him. I did not think he was trying to rape me.
7. When we got started back home and he said “don’t narc on me,”
he was asking me not to tell mama about his girlfriend.
8. I made up the part about his trying to rape me because Mama
had asked me to.
9. Mama & Daddy were getting a divorce and she didn’t want him to
have the trailer and land in Mississippi. She wanted him out of the
way.
10. I knew Mama would let me do what I wanted to do, so I helped
her out. Daddy was too strict about boys and what I did, so I didn’t
want to live with him anymore.

On the same day Mixon filed the petition for writ of error coram nobis in the

trial court, he also requested, and was granted, a continuance of the oral

argument in the Court of Criminal Appeals until March of 1996. In February,

Mixon requested a second continuance until May of 1996, which the Court of

Criminal Appeals again granted after observing that the petition for writ of error

coram nobis “might be determinative of this appeal.”

On March 27, 1996, the trial court held a hearing on the coram nobis

petition at which the victim testified consistently with her affidavit. At the

conclusion of the hearing, the trial court denied the petition on the basis that

recanted testimony does not constitute newly discovered evidence which can

support issuance of a writ of error coram nobis. The trial court noted, however,

that if the victim had not testified at the initial trial “it would have affected the

outcome of the trial” and “probably would have resulted in a dismissal” of the

prosecution.

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 In April of 1996, Mixon filed a notice of appeal from the trial court’s denial of

the petition for writ of error coram nobis. Mixon also filed a motion requesting that

the Court of Criminal Appeals consolidate his appeal as of right with the coram

nobis appeal. The Court of Criminal Appeals granted the motion to stay oral

argument and consolidated the coram nobis appeal with Mixon’s pending appeal

as of right from his conviction.

Upon consideration of the consolidated appeal, a majority of the Court of

Criminal Appeals addressed only the issues related to Mixon’s appeal from the

denial of the petition for writ of error coram nobis. Although stating that the

petition had not been timely filed within one year of the judgment becoming final,

the majority concluded that the issue had been waived because the State had

failed to plead the statute of limitations as a bar. With respect to the merits of the

petition, the majority concluded that the trial court had erred in holding that

recanted testimony will never support issuance of the writ of error coram nobis.

The majority opined that

[t]he test for granting a new trial in cases involving recanted
testimony is as follows: (1) the trial judge is reasonably well satisfied
that the testimony given by a material witness was false and that the
new testimony is true; 2) the defendant was reasonably diligent in
discovering the new evidence or surprised by false testimony, or
unable to know of the falsity until after the trial; and 3) the jury might
have reached a different conclusion had the truth been told.

Since the trial court had concluded, as a matter of law, that recanted testimony

does not constitute newly discovered evidence which will support issuance of the

petition for writ of error coram nobis, the trial court had not applied the test.

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Accordingly, the majority reversed and remanded the case to the trial court for

application of the three-pronged test. The majority did not consider the issues

raised by Mixon in his appeal as of right.

One judge dissented from the remand. The dissenting judge stated that

the one-year coram nobis statute of limitations does not begin to run until the

conclusion of appellate proceedings and a petition filed during the pendency of an

appeal as of right must be dismissed as premature. Accordingly, the dissenting

judge opined that the majority had no jurisdiction to address the issues raised in

the coram nobis appeal and should have only addressed the issues raised in

Mixon’s appeal as of right. Considering those issues on the merits, the dissenting

judge would have reversed the defendant’s convictions for attempted rape,

attempted incest, and sexual battery and remanded for a new trial because of a

double jeopardy violation and because the trial court erred by allowing the State to

impeach the defendant’s testimony with his prior conviction for sexual battery.

We granted Mixon’s application for permission to appeal, and for the

reasons that follow, now reverse the defendant’s convictions for attempted rape,

attempted incest, and sexual battery and remand for a new trial.4

4
Mixon has no t challenge d his con victions for public intox ication and evading arrest;
therefor e, those c onvictions are in no w ay affecte d by our de cision in this a ppeal.

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 II.

WRIT OF ERROR CORAM NOBIS

A. Historical Origin

The writ of error coram nobis is an extraordinary remedy known more for its

denial than its approval. Penn v. State, 670 S.W.2d 426, 428 (Ark. 1984). The

writ was developed by the judiciary in England during the Sixteenth century. 18

Am. Jur. 2d Coram Nobis and Allied Statutory Remedies § 1 (1985). Since

neither the right to move for a new trial nor the right to appeal were recognized at

common law, the writ of error coram nobis was developed as a procedural

mechanism to allow courts to provide relief under limited circumstances. 5 Morgan

Prickett, Writ of Error Coram Nobis in California, 30 Santa Clara L. Rev. 1, 3

(1990). Essentially, the common law writ of error coram nobis allowed a trial court

to reopen and correct its judgment upon discovery of a substantial factual error

not appearing in the record which, if known at the time of judgment, would have

prevented the judgment from being pronounced. John S. Gillig, Kentucky Post-

Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal

Procedure 11.42, 83 Ky. L.J. 265, 320 (1994-95). Literally, “coram nobis” means

“our court,” or “before us.” Black’s Law Dictionary 304 (5th ed. 1979). Therefore,

the writ of error coram nobis was addressed to the very court which had rendered

the judgment rather than to an appellate or other reviewing court. Id.

5
Errors of law were reviewed by higher courts through the common law writ of error which
was su bstantially ana logous to the m odern a ppeal. Pric kett, 30 S anta Cla ra L. Rev . at 3; People v.
Reid , 232 P. 45 7, 460 (C al. 1924).

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 The writ was thus distinctive in that it required the reconsideration of
a judgment by a court which had already made a final disposition of
the cause; but it cast no aspersions on the competency or finding of
the court in its first judgment, for it lay only to call up facts which
were unknown to the court at the time of judgment and which were
not inconsistent with the record.

Note, The Writ of Error Coram Nobis, 37 Harv. L. Rev. 744 (1924). As such, the

common law writ of error coram nobis did not encompass complaints about errors

or mistakes in the judgment, but instead alleged that because of something that

never came before the court, “it was a mistake to proceed to judgment at all.”

Prickett, 30 Santa Clara L. Rev. at 6 n.13. Though more frequently employed in

civil cases, coram nobis relief was available in criminal proceedings under English

common law.6 Prickett, 30 Santa Clara L. Rev. at 6-9. Generally at common law

the only time limitation upon the filing of the writ of error coram nobis was the

requirement that a petitioner show that he or she had exercised due diligence in

advancing the claim and seeking the remedy. 18 Am.Jur.2d Coram Nobis and

Allied Statutory Remedies § 31 (1985); see also United States v. Morgan, 346

U.S. 502, 507, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954); Penn, 670 S.W.2d at 574.

The common law writ of error coram nobis was brought over from England

to the thirteen colonies and later incorporated into the jurisprudence of the United

States. Prickett, 30 Santa Clara L. Rev. at 7. The writ was not often utilized in

criminal cases and, with the advent of the right to seek a new trial and the right to

6
Coram nobis was abolished by statute in Great Britain in civil cases in 1852 and in criminal
cases in 1907. Prickett, 30 Santa Clara L. Rev. 2 n.20.

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appeal, use of the writ in both civil and criminal cases declined well into the

Twentieth century. Gillig, 83 Ky. L.J. at 321; 18 Am. Jur. 2d Coram Nobis and

Allied Statutory Remedies § 1 (1985).

There was a revival of the use of the writ in criminal proceedings following a

1935 United States Supreme Court decision7 in which the Court pointed out that

states should have post-conviction procedures broad enough to encompass

deprivations of federal constitutional rights. Gillig, 83 Ky. L.J. at 321; 18 Am. Jur.

2d Coram Nobis and Allied Statutory Remedies § 1 (1985). Through the 1940's

and 50's many states utilized the writ of error coram nobis as a post-conviction

remedy, but when states thereafter adopted more modern and comprehensive

post-conviction remedies, the writ of error coram nobis again sank into obscurity

and largely remains there today. Prickett, 30 Santa Clara L. Rev. at 2.

While the writ of error coram nobis was recognized and utilized under the

common law in Tennessee, the General Assembly in 1858 enacted a statute

which codified the procedure for seeking the writ of error coram nobis, expanded

the grounds upon which a claim for relief under the writ could be based, and

placed a time limitation upon its filings which provided that “[t]he writ of error

coram nobis may be had within one year from the rendition of the judgment. . . .”

Code 1858, § 3111; Jones v. Pearce, 59 Tenn. 281, 286 (1868). Both at common

law and under the 1858 statutory enactment, however, the writ of error coram

7
Mooney v. Holohan, 294 U.S . 103, 79 L .Ed 791 , 55 S.Ct. 3 40 (193 5).

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nobis was limited in scope to civil proceedings. Green v. State, 216 S.W.2d 305

(Tenn. 1948).

In 1955 the General Assembly extended the writ of error coram nobis to

criminal proceedings. 1955 Tenn. Pub. Acts 166. The relief available extended

only to “errors dehors the record and to matters that were not or could not have

been litigated on the trial of the case, on a motion for a new trial, on appeal in the

nature of a writ of error, on writ of error, or in a habeas corpus proceeding.” Id.

With respect to procedure, the statute provided only that criminal coram nobis

proceedings were “to be governed by the same rules and procedure applicable to

the writ of error coram nobis in civil cases, except in so far as inconsistent

herewith.” Id.

Though the writ of error coram nobis in civil cases was superseded8 when

Rule 60 of the Tennessee Rules of Civil Procedure became effective in 1971,9 the

adoption of Rule 60 did not diminish or supersede the statute which extended the

writ as an available remedy in criminal proceedings. Indeed, Tenn. Code Ann. §

40-26-105 (1997 Repl.) currently provides as follows:

There is hereby made available to convicted defendants in criminal
cases a proceeding in the nature of a writ of error coram nobis, to be
governed by the same rules and procedure applicable to the writ of
error coram nobis in civil cases, except insofar as inconsistent

8
See Tenn. R. Civ. P. 60.02 Advisory Commission Comments (“This Rule supersedes
chapter 7 of Title 27, T.C.A., dealing with the writ of error coram nobis . . . .”).

9
See Tenn. R. Civ. P. 1 Advisory Com mission Com ments (Th e Rules of Civil Procedure
becam e effective January 1, 1971).

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 herewith. Notice of the suing out of the writ shall be served on the
district attorney general. No judge shall have authority to order the
writ to operate as a supersedeas. The court shall have authority to
order the person having custody of the petitioner to produce the
petitioner in court for the hearing on the proceeding. The relief
obtainable by this proceeding shall be confined to errors dehors the
record and to matters that were not or could not have been litigated
on the trial of the case, on the motion for a new trial, on appeal in the
nature of a writ of error, on writ of error, or in a habeas corpus
proceeding. Upon a showing by the defendant that the defendant
was without fault in failing to present certain evidence at the proper
time, a writ of error coram nobis will lie for subsequently or newly
discovered evidence relating to matters which were litigated at the
trial if the judge determines that such evidence may have resulted in
a different judgment, had it been presented at the trial. The issue
shall be tried by the court without the intervention of a jury, and if the
decision be in favor of the petitioner, the judgment complained of
shall be set aside and the defendant shall be granted a new trial in
that cause. In the event a new trial is granted, the court may, in its
discretion, admit the petitioner to bail; provided that the offense is
bailable. If not admitted to bail, the petitioner shall be confined in the
county jail to await trial. The petitioner or the state may pray an
appeal in the nature of a writ of error to the supreme court from the
final judgment in this proceeding.

(Emphasis added.)

The anomalous result is that the writ of error coram nobis continues to be

an available remedy in criminal actions, but the procedure governing the remedy

is based upon the civil writ of error coram nobis which has been abolished for

almost 28 years. In this appeal, therefore, we must clarify several procedural

issues which have arisen relating to the operation of the writ of error coram nobis

in criminal proceedings.

B. Statute of Limitations

Initially, we must determine when the one-year coram nobis statute of

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limitations begins to run. The statute currently provides that “[t]he writ of error

coram nobis may be had within one (1) year after the judgment becomes final. . .

.” Tenn. Code Ann. § 27-7-103 (1980 Repl.). Relying upon a footnote in Teague

v. State, 772 S.W.2d 915, 920 n.2 (Tenn. Crim. App. 1988), the State asserts that

a judgment does not become final for purposes of this statute until the conclusion

of the appeal as of right proceedings. In addition, the State contends that a

petition for writ of error coram nobis which is filed before the conclusion of

appellate proceedings must be dismissed as premature. Since the petition in this

case was filed during the pendency of Mixon’s appeal, the State argues that it

should be dismissed, without prejudice, as premature.

Mixon agrees with the State that the coram nobis statute of limitations does

not expire until one year after the conclusion of appellate proceedings. However,

Mixon argues that a petition for writ of error coram nobis may be filed at any point

after a final judgment is entered in the trial court until one year after conclusion of

appellate proceedings. Thus, Mixon argues that a petition may be filed in the trial

court during the pendency of an appeal.

We begin our analysis of this issue of statutory construction with a brief

historical review. As originally enacted in 1858, the one-year coram nobis statute

of limitations provided that “[t]he writ of error coram nobis may be had within one

year from the rendition of the judgment, by petition presented to the judge at

chambers or in open court. . . .” Code 1858, § 3111. In 1940, fifteen years before

the General Assembly extended the writ of error coram nobis and its attendant

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procedures to criminal proceedings, this Court in Cates v. City of McKenzie, 176

Tenn. 313, 141 S.W.2d 471 (1940), held the “‘rendition’ [of the judgment] is the

time of announcement, ‘in a conclusive manner and with decisive effect,’ of a

judgment, as distinguished from entry thereof, which may be a later date.” Id. In

other words, in Cates this Court held that the one-year coram nobis statute of

limitations begins to run from the time a judgment is announced in the trial court in

a conclusive manner, rather than from the time a judgment is formally filed or

entered. In Cates, the trial court ordered the sale of land in February of 1937, but

did not enter the final decree confirming the report of the sale until August of

1938. Under those circumstances, this Court held that the statute of limitations

began to run in February of 1937, and the petition, filed more than one year later

in December of 1938, was time-barred.

In Johnson v. Russell, 404 S.W.2d 471 (Tenn. 1966), a criminal case

involving the writ of error coram nobis, this Court again held that the petition was

time-barred because it had been filed more than one year after the judgment had

been rendered in the trial court. The Johnson court held that the trial court could

take judicial notice of the date that the judgments were rendered since the petition

was before the “same trial judge who tried the man on the original three

convictions.” 404 S.W.2d at 473.

In an apparent response to the decision in Johnson, the General Assembly

in 1967 amended the coram nobis statute of limitation by deleting the words, “from

rendition of judgment,” and by substituting instead, “after the judgment becomes

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final.” The 1967 revision is the only amendment to the coram nobis statute of

limitations since its enactment in 1858. The sponsor of the proposed legislation

told the full Senate that the amendment would extend the time for filing a writ of

error coram nobis “by thirty days.” 85th General Assembly, Remarks of Senator

Thomas A. Harris, Senate Floor Session, March 23, 1967, Tape # S-212.

Similarly, the House sponsor explained that under the proposed amendment a

person would be able to file a petition for writ of error coram nobis for up to one

year after his or her “appeal has been perfected.” 85th General Assembly,

Remarks of Representative Charles D. Galbreath, House Floor Session, May 16,

1967, Tape # H-336.

It is well-established that the fundamental role of this Court in construing

statutes is to ascertain and give effect to legislative intent. State v. Sliger, 846

S.W.2d 262, 263 (Tenn. 1993). Moreover, the Legislature is presumed to know

the state of the law at the time it passes legislation. Wilson v. Johnson County,

879 S.W.2d 807, 810 (Tenn. 1994). Applying these general rules of statutory

construction and considering the historical context, we conclude from the

language of the amendment and the comments of the sponsors that the 1967

amendment was intended to overrule this Court’s prior decisions in Cates and

Johnson to the extent those decisions had held that the statute of limitations

begins to run from the time a judgment is pronounced rather than from the time a

judgment is formally entered. In our view, by adoption of the amendment, the

General Assembly intended to change the trigger of the statute of limitations from

pronouncement of judgment in the trial court to final judgment in the trial court. A

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judgment becomes final in the trial court thirty days after its entry if no post-trial

motions are filed. If a post-trial motion is timely filed, the judgment becomes final

upon entry of an order disposing of the post-trial motion. See Tenn. R. App. P.

4(c); State v. Pendergrass, 937 S.W .2d 834, 837 (Tenn. 1996). Accordingly, we

hold that a petition for writ of error coram nobis must be dismissed as untimely

unless it is filed within one year of the date on which the judgment of conviction

became final in the trial court.

In so holding, we reject the contention of both Mixon and the State that the

statute does not begin to run until the conclusion of the appeal as of right

proceedings. The statute on its face does not lend itself to the suggested

interpretation. Had the General Assembly intended for the statute of limitations to

begin only after the conclusion of appellate proceedings, it certainly could have

employed clear language to accomplish that intent. In fact, the General Assembly

has used such clear language in the post-conviction relief context where a petition

must be filed “within one (1) year of the date of the final action of the highest state

appellate court to which an appeal is taken . . . . “ Tenn. Code Ann. § 40-30-

202(a) (1997 Repl.) (emphasis added).

In addition, the assertion that the statute does not begin until appellate

proceedings are concluded is also inconsistent with the longstanding rule that

persons seeking relief under the writ must exercise due diligence in presenting the

claim. 18 Am. Jur. 2d, Coram Nobis and Allied Statutory Remedies § 31 (1985).

The assertion also overlooks the fact that with the passage of time, evidence

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grows stale, witnesses disperse, and memories erode. See Herrera v. Collins,

506 U.S. 390, 403-04, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1992). A claim of

newly discovered evidence which is not asserted until appellate proceedings are

concluded, likely years after a person has been tried and convicted, is inherently

suspect. Id. at 417-18, 113 S.Ct. at 869. Also, as a practical matter, were we to

apply such an interpretation, oftentimes the original trial judge would not be

available to make the statutory determination of whether the newly discovered

evidence “may have resulted in a different judgment had it been presented at the

trial.” Tenn. Code Ann. § 40-26-105 (1997 Repl.). W e acknowledge that it is

neither practically possible nor legally required that the original trial judge make

this determination in every case. However, having the original trial judge make the

determination as soon as possible after a judgment has become final in the trial

court is certainly preferable. See Penn, 670 S.W.2d at 429 (stating that because

petition filed while case was between trial and appeal can easily provide for an

early hearing before the court that just heard the case); cf. State v. Moats, 906

S.W.2d 431, 435 (Tenn. 1995) (discussing comparable problems associated with

a trial judge making a thirteenth juror determination upon remand from an

appellate court long after the trial was concluded).

In addition, finality concerns militate against applying the interpretation

advanced by Mixon and the State. “[T]he administration of justice and the integrity

of our court system demand, in addition to fair treatment under the law, a certain

degree of finality to criminal judgments.” Harrison v. State, 394 S.W.2d 713, 717-

18 (Tenn. 1964). Since a convicted defendant had no other avenue for seeking

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relief at common law, it was entirely appropriate for due diligence to be the only

time limitation on the writ; however, criminal procedure has drastically changed in

the past thirty years. See City of White House v. Whitley, __ S.W.2d __, __

(Tenn. 1998). Convicted defendants now have the right to move for a new trial,

the right to appeal, the right to seek post-conviction relief, and the right to file

habeas corpus petitions. 10 The post-conviction statute now provides a method by

which courts may address claims of actual innocence which are based upon newly

discovered scientific evidence.11 Finally, convicted defendants who discover new

non-scientific evidence of actual innocence too late to file a motion for new trial or

petition for writ of error coram nobis may always seek executive clemency.12

Clearly, in this modern procedural regime, the writ of error coram nobis is no

longer a convicted defendant’s only hope for relief. See Penn, 670 S.W.2d at

573-74 (describing the writ as filling a gap in the legal system); Ex Parte Welles,

53 So.2d 708, 711 (Fla. 1951) (stating that the writ supplements but does not

supersede the motion for new trial or the right of appeal).

In light of the aforementioned many procedural protections, there is no

need to reinterpret the statute of limitations which has been in effect in this State

in basically the same form since 1858. Extending the time for filing a petition for

writ of error coram nobis until one year after appellate proceedings have

10
Tenn. R. Crim . P. 33 (new trial); Tenn. R. Crim. P. 37 & Tenn. R . App. P. 3(b) (appeal);
Tenn. Code Ann. §§ 40-30-201 et seq. (1997 Repl.) (post-conviction); Tenn. Code Ann. §§ 29-21-
101 et se q. (habe as corp us) (198 0 Rep l.).

11
Tenn. Code A nn. § 40-30-202(b)(2)(1997 R epl.).

12
Tenn. Code A nn. § 40-27-101 et seq. (1997 R epl.).

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concluded would unnecessarily compromise society’s interest in finality.

The State would also have us hold that a petition for writ of error coram

nobis may not be filed until the end of appellate proceedings. At the very least,

this approach would delay justice and perhaps entirely deny justice. For example,

a defendant who discovers new evidence establishing actual innocence only one

day after a notice of appeal is filed would be required to wait until the appellate

process is concluded, perhaps years later, before filing a petition for writ of error

coram nobis. We decline to adopt such a rule. To summarize and borrow from a

statement made by the Florida Supreme Court when urged to adopt a similar rule,

if rules of procedure have become so inflexible that courts are unable to provide

timely relief to an innocent person wrongly convicted then “we have lost the

creative faculty that we have always thought to be resident in the judiciary.” Ex

Parte Welles, 53 So.2d at 710.

As previously stated, we hold that a petition for writ of error coram nobis

must be filed within one year of the time judgment becomes final in the trial

court.13 In this case the judgment became final in the trial court on March 20,

1995 when Mixon’s motion for new trial was denied. Accordingly, the petition for

writ of error coram nobis filed less than one year later on December 22, 1995 was

timely.

C. Procedure

13
To the extent tha t Teag ue v. State , 772 S.W .2d 9 15 (T enn . Crim . App . 198 8), is
inconsistent with our holding, it is hereby overruled.

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 In light of our conclusion that a petition for writ of error coram nobis is

untimely unless filed within one year of the time a judgment becomes final in the

trial court, it is clear that a timely petition for writ of error coram nobis will almost

always be filed while an appeal is pending.14 Pendency of the appeal does not

divest the trial court of jurisdiction to consider the petition for writ of error coram

nobis since a suit for writ of error coram nobis is a new action. Moore v. Moore,

431 S.W.2d 754, 755 (Tenn. 1968). Nonetheless, the coram nobis petition and

the appeal both relate to the same conviction; therefore, we hereby adopt a

procedure which applies when a petition for writ of error coram nobis is filed in the

trial court during the pendency of an appeal. The procedure is designed both to

accommodate a convicted defendant’s ability to seek coram nobis relief and to

promote judicial economy and conserve judicial resources.

On the same day that a petition for writ of error coram nobis is filed in the

trial court, the petitioner should also file in the appellate court a motion requesting

that the appellate proceedings be stayed pending the trial court’s decision on the

writ of error coram nobis. A copy of the petition should be attached to the motion.

Under most circumstances, the motion to stay should be granted.15 Ex Parte

14
Cf. Pynes v. S tate, 66 So.2d 277 (Fla . 1953); Ex Parte Welles, 53 So.2d at 710 (in the
absence of a specific time limitation, a petition for writ of error coram nobis must be filed within the
time pre scribed for filing an ap peal as o f right). To th e exten t that Edwa rds v. State , 491 S.W.2d 87
(Tenn. Crim. App. 1972), holds that a petition for writ of error coram nobis may not be filed while an
appeal is pending, it is overruled.

15
Gro und s to d eny th e m otion ma y exist if relea se of the a ppe llate c ourt’s decis ion is
imm inent and the decis ion grants the petitione r a new trial, or the appe llate court is ab le to
determine that the petition is clearly time-barred, or the allegations of the petition clearly are
insufficien t in legal effec t to suppo rt coram nobis relief. See 18 Am. Jur. 2d Coram Nobis and Allied
Statutory Remedies § 32 (1985)( explaining a similar rule which requires petitioners to apply to the
appellate court before filing a petition in the trial court and stating that an appellate court may deny
the application if the facts alleged legally do not support coram n obis relief).

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Welles, 53 So.2d at 710 (“if appeal has been taken to this Court the application

may be made here for permission to apply to the trial court at any time before the

case is decided. . . .”); cf. Spence v. Allstate Ins. Co., 883 S.W.2d 586, 596 (Tenn.

1994) (stating that a party who seeks relief in the trial court during the pendency of

an appeal pursuant to Tenn. R. Civ. P. 60.02, which superseded the writ of error

coram nobis in civil proceedings, must apply to the appellate court for an order of

remand). Any appeal from the trial court’s decision on the petition for writ of error

coram nobis is to be consolidated with the defendant’s pending appeal as of right.

Tenn. R. App. P. 16(b) (“appeals involving a common question of law or common

facts . . . may be consolidated by order of the appellate court on its own motion or

on motion of a party”).

If the trial court has granted a new trial on the petition for writ of error coram

nobis and the State is appealing that decision, the appellate court should first

consider the issues relating to the coram nobis proceeding. If the trial court’s

coram nobis decision to grant a new trial is affirmed, the issues raised in the

defendant’s appeal as of right become moot and need not be addressed by the

appellate court. However, if the trial court denied the petition for writ of error

coram nobis and the defendant is the appellant, the appellate court should first

address the issues raised in the defendant’s appeal as of right. If the appellate

court determines that a new trial is required as a result of one or more of those

issues, then the appellate court need not address the issues raised in the coram

nobis appeal. This rule recognizes that coram nobis is an extraordinary

procedural remedy in this modern regime. It fills only a slight gap into which few

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cases fall. Penn, 670 S.W.2d at 573-74. It is appropriate, therefore, that an

appellate court consider whether relief is available pursuant to the writ only after it

has determined that none of the issues raised in a defendant’s appeal as of right

warrant a new trial.

In this case, Mixon properly filed the motion for stay in the appellate court,

the Court of Criminal Appeals properly stayed the appeal as of right and later

properly consolidated Mixon’s appeal as of right and coram nobis appeal. The

decision by the majority of the Court of Criminal Appeals, however, addressed

only the issues raised in Mixon’s coram nobis appeal and did not address the

issues raised in Mixon’s appeal as of right.

We agree with the Court of Criminal Appeals that the trial court erred when

it held, as a matter of law, that recanted testimony does not constitute newly

discovered evidence.16 We also agree that the Court of Criminal Appeals

enunciated the correct standard which should be applied by trial courts in

16
As enacted in 1955, the criminal writ of error coram nobis statute generally did not
encompass claims based upon newly discovered evidence. In Rowe v. State , 498 S.W.2d 322,
325-26 (Tenn. 1973), this Court specifically held that the writ of error coram nobis would not lie for
recanted testimony because it related to a matter that had been litigated at the original trial. The
holding in Rowe was superseded five years later, however, when the General Assembly amended
the statute to specifically provide that

[u]pon a s howing by the defe ndant tha t the defen dant wa s without fa ult in failing to
present certain evidence at the proper time, a writ of error coram nobis will lie for
subsequently or newly discovered evidence relating to matters which were litigated
at the trial if the judge determines that such evidence may have resulted in a
diffe rent ju dgm ent h ad it be en pr ese nted at the trial.

1978 Tenn. Pub. Acts 738. The amendment was clearly intended to encompass recanted
testimony. In fact, the sponsor of the proposed legislation stated on the Senate Floor that the
amendment would permit a petition for writ of error coram nobis, if “after the time for filing a motion
for n ew tria l a per son wron gly con victed disco vers that a witne ss lied .” 90th Gen eral A sse mb ly,
Remarks of Senator Victor Ashe, Senate Floor Session, March 22, 1978, Tape # S-124.

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determining whether a new trial should be granted upon the basis of newly

discovered recanted testimony.17 However, because of the extraordinary nature of

the writ of error coram nobis, the Court of Criminal Appeals should have

addressed those issues only if it had first determined that Mixon was not entitled

to relief upon the issues raised in his appeal as of right. This is particularly true in

light of the fact that the Court of Criminal Appeals could not reach the merits of the

coram nobis claim because the trial court’s ruling was legally erroneous.

While the State urges us to remand this case to the Court of Criminal

Appeals for resolution of the issues raised by the defendant in his appeal as of

right, we decline. We exercise our discretion in order to prevent needless litigation

and to promote judicial economy and hereafter address the issues raised by the

defendant in his appeal as of right to the Court of Criminal Appeals. See Tenn. R.

App. P. 13(b) (“[t]he appellate court . . . may in its discretion consider other issues

in order, among other reasons: (1) to prevent needless litigation, (2) to prevent

injury to the interests of the public, and (3) to prevent prejudice to the judicial

process.”) We conclude that Mixon is entitled to a new trial because the trial court

erroneously allowed the State to use the defendant’s prior conviction of sexual

battery to impeach his testimony. As a result, we need not address the merits of

Mixon’s claim that he is entitled to relief pursuant to the extraordinary remedy of

17
The Court of Criminal Appeals held that a new trial should be granted upon the basis of
newly discovered recanted testimony only if: (1) the trial court is reasonably well satisfied that the
testimony given by the material witness was false and the new testimony is true; (2) the defendant
was reasonably diligent in discovering the new evidence, or was surprised by the false testimony, or
was unable to know of the falsity of the testimony until after the trial; and (3) the jury might have
reache d a differe nt conc lusion ha d the truth b een told. Larrison v. United States, 24 F.2d 82, 87-88
(7th Cir. 19 28); Cole v. Sta te, 589 S.W .2d 941 ( Tenn . Crim. A pp. 1979 ); Cook e v. State , 464
S.W .2d 324 ( Tenn . Crim. A pp. 1970 ); Guy v. Sta te, 443 S.W .2d 520 (Tenn. Crim . App. 1969).

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writ of error coram nobis.

III.

IMPEACHMENT BY PRIOR CONVICTION

Mixon argues that the trial court erred by allowing the State to impeach his

testimony by inquiring on cross-examination about his 1986 conviction of sexual

battery because the probative value of the previous conviction on credibility did

not outweigh its unfair prejudicial effect on the substantive issues involved in the

trial. In response, the State contends that because the prior conviction for sexual

battery was a serious offense, resulting in a ten year sentence, the trial court did

not abuse its discretion by permitting the question. Alternatively, the State

contends that any error was harmless because the error does not “affirmatively

appear to have affected the result of the trial on the merits.” Tenn. R. Crim. P.

52(a).

We begin our analysis of this issue with Tenn. R. Evid. 609 which provides

in pertinent part as follows:

(a) For the purpose of attacking the credibility of a witness, evidence
that the witness has been convicted of a crime may be admitted if
the following procedures and conditions are satisfied:

****

(2) The crime must be punishable by death or imprisonment in
excess of one year under the law under which the witness was
convicted, or if not so punishable, the crime must have involved
dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal
prosecution the State must give the accused reasonable written
notice of the impeaching conviction before trial, and the court upon

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 request must determine that the conviction’s probative value on
credibility outweighs its unfair prejudicial effect on the substantive
issues. The court may rule on the admissibility of such proof prior to
the trial but in any event shall rule prior to the testimony of the
accused. If the court makes a final determination that such proof is
admissible for impeachment purposes, the accused need not
actually testify at the trial to later challenge the propriety of the
determination.

(b) Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed between the date of
release from confinement and commencement of the action or
prosecution; if the witness was not confined, the ten-year period is
measured from the date of conviction rather than release. . . .

Accordingly, under Rule 609 the State may use a conviction to impeach the

testimony of an accused in a criminal prosecution if the following four conditions

are satisfied: (a) the conviction is for a crime punishable by death or imprisonment

in excess of one year, or the conviction is for a misdemeanor which involved

dishonesty or false statement; (b) less than ten years has elapsed between the

date the accused was released from confinement and the commencement of the

subject prosecution; (c) the State gives reasonable pretrial written notice of the

particular conviction or convictions it intends to use as impeachment; and (d) the

trial court concludes that the probative value of the prior conviction on the issue of

credibility outweighs its unfair prejudicial effect on the substantive issues. It is the

last condition which is at issue in this appeal -- whether the probative value of the

sexual battery conviction on the defendant’s credibility outweighed its prejudicial

effect upon the substantive issues presented at trial.

In determining whether the probative value of a conviction on the issue of

credibility outweighs its unfair prejudicial effect upon the substantive issues, two

criteria are especially relevant. A trial court should first analyze the relevance the

impeaching conviction has to the issue of credibility. Cohen, Sheppeard, Paine,

Tennessee Law of Evidence § 609.9 at 376 (3d ed. 1995). Trial courts should

- 2 8 -
explain on the record how the impeaching conviction is relevant to the defendant’s

credibility. If the conviction is probative of the defendant’s credibility, the trial court

should secondly “assess the similarity between the crime on trial and the crime

underlying the impeaching conviction.” Id. When an impeaching conviction is

substantially similar to the crime for which the defendant is being tried, there is a

danger that jurors will erroneously utilize the impeaching conviction as propensity

evidence of guilt and conclude that since the defendant committed a similar

offense, he or she is probably guilty of the offense charged. State v. Barnard, 899

S.W.2d 617, 622 (Tenn. Crim. App. 1994); State v. Farmer, 841 S.W.2d 837, 839-

40 (Tenn. Crim. App. 1992); Long v. State, 607 S.W.2d 482 (Tenn. Crim. App.

1980). Accordingly, the unfairly prejudicial effect of an impeaching conviction on

the substantive issues greatly increases if the impeaching conviction is

substantially similar to the crime for which the defendant is being tried. Therefore,

trial courts should carefully balance the probative value of the impeaching

conviction on credibility against its unfairly prejudicial effect on substantive issues.

The trial court in this case did not purport to determine whether the sexual

battery conviction’s probative value on credibility outweighed its unfair prejudicial

effect on the substantive issues. The trial court interpreted Tenn. R. Evid. 609 as

permitting impeachment by any and all felony convictions and did not explain the

relevance of the sexual battery to Mixon’s credibility. In this Court, the State does

not explain how the sexual battery conviction is probative of the defendant’s

credibility, but says only that it was a serious offense. The relevance of the

conviction to credibility certainly is not apparent from the record. However, the

impeaching conviction is identical to one of the crimes for which Mixon was tried

and substantially similar to the other charged offenses. As previously explained,

under such circumstances, the danger of unfair prejudice is great. Accordingly,

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we conclude that the trial court abused its discretion in allowing the State to

impeach the defendant’s testimony with the prior sexual battery conviction.

Moreover, we do not agree with the State’s assertion that the error is

harmless. This trial was strictly a credibility contest. The only proof that a crime

occurred was the testimony of A.M. While admitting before the jury that he was

guilty of public intoxication and evading arrest, Mixon testified unequivocally that

he had not touched A.M. nor made inappropriate comments to her. The

defendant instead said that he had argued with A.M. about her involvement with

an eighteen-year-old male. While there is testimony in the record that A.M. had

been crying and hysterical, this testimony certainly is not contradictory of Mixon’s

account of the incident. Obviously, because of the nature of the alleged touching,

there is no medical proof in the record to corroborate A.M.’s testimony. During

closing argument, the State repeatedly emphasized the prior sexual battery

conviction. After acknowledging that, “this case comes down to a question of

credibility,” the State reminded the jury:

[y]ou know about his credibility. You know about his past. The
Court will tell you about impeachment. And I submit that the
conviction of this defendant for the crimes in Mississippi of sexual
battery, should be used to impeach his testimony -- impeach his
testimony. He is not to be believed. He is not to be believed. So
you have to decide who you want to believe -- him or her?

Unlike other situations in which the improper use of an impeaching

conviction has been held to constitute harmless error, the evidence of guilt in this

case is not overwhelming and the State emphasized the conviction to the jurors

when urging them to find the defendant guilty. Under these circumstances we

conclude that the trial court erred by allowing the State to use the sexual battery

conviction to impeach the defendant’s testimony, and the error is prejudicial

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because it affirmatively appears to have affected the verdict. Tenn. R. Crim. P.

52(a); see also Tenn. R. App. P. 36(b) (reversal is appropriate if error involving a

substantial right more probably than not affected the judgment). Accordingly, we

reverse the defendant’s convictions for attempted rape, attempted incest, and

sexual battery and remand for a new trial.18 Because the issue may again arise

upon retrial, we will next address the defendant’s claim that his double jeopardy

right not to be punished twice for the same offense was violated when the jury

convicted him of both attempted rape and sexual battery.

IV.

DOUBLE JEOPARDY

The double jeopardy clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject to the same offense to be

twice put in jeopardy of life or limb. . . .” Similarly, Article I, Section 10 of the

Tennessee Constitution provides that “no person shall, for the same offence, be

twice put in jeopardy of life or limb.” As we have stated often and most recently in

Stuart v. State Dep't of Safety, 963 S.W.2d 28, 32 (Tenn. 1998), three

fundamental principles are encompassed within the federal and state

constitutional protection against double jeopardy: (1) protection against a second

prosecution after an acquittal; (2) protection against a second prosecution after

conviction; and (3) protection against multiple punishments for the same offense.

It is the third principle which the defendant claims was violated by his dual

convictions for attempted rape and sexual battery.

18
Because we have reversed and remanded for a new trial, we need not address the
defendant’s following claims: (1) the evidence was insufficient to support the convictions for
attempted rape, attempted incest, and sexual battery; (2) the trial court should have granted a new
trial because of an alleged relationship with the victim’s mother and a juror and because a friend of
the victim’s family reported the testimony of other witnesses to the victim’s mother who later
testified in the c ase; an d (3) the trial co urt impo sed an exces sive sen tence.

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 In State v. Denton, 938 S.W.2d 373 (Tenn. 1996), we held that in order to

determine whether multiple convictions for a single criminal action are

constitutionally permissible, courts must apply the following four-prong inquiry:

(1) a Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306 (1932) analysis of the statutory offenses; (2) an analysis,
guided by the principles of Duchac v. State, 505 S.W.2d 237 (Tenn.
1973) of the evidence used to prove the offenses; (3) a
consideration of whether there were multiple victims or discrete acts;
and (4) a comparison of the purposes of the respective statutes.

Denton, 938 S.W.2d at 381. As we explained in Denton, no single factor is

determinative; rather, the results of each must be weighed and considered. Id.

We begin with the Blockburger test which involves a comparison of the

statutory elements of the offenses. Attempted rape requires proof both that the

defendant attempted to sexually penetrate the victim and that the defendant’s

actions constituted a substantial step toward penetration. Tenn. Code Ann. § 39-

12-10119 and § 39-13-50320 (1997 Repl.). Sexual battery requires proof that the

defendant touched one of the victim’s intimate parts or the clothing surrounding an

intimate part and that the touching can be reasonably construed as being for the

19
Under this statute, “[a] person commits criminal attempt who, acting with the kind of
culp ability ot herw ise re quire d for the o ffen se: (1 ) Inten tiona lly enga ges in act ion or caus es a r esu lt
that would constitute an offense if the circumstances surrounding the conduct were as the person
believes them to be; (2) Acts with intent to cause a result that is an element of the offense, and
believes th e cond uct will caus e the res ult without fur ther con duct on the pers on’s part; o r (3) Acts
with intent to complete a course of action or cause a result that would constitute the offense, under
the circumstances surrounding the conduct as the person believes them to be, and the conduct
constitutes a substantial step toward the commission of the offense. (b) Conduct does not
con stitute a sub stan tial ste p und er su bdivis ion (a )(3) u nles s the pers on’s entire cour se of actio n is
corroborative of the to commit the offense. (c) It is no defense to prosecution for criminal attempt
that the off ense a ttemp ted was actually com mitted.”

20
Rape is defined as the “unlawful sexual penetration of a victim by the defendant or of the
defe nda nt by a victim acc om pan ied by a ny of th e follo wing circu ms tanc es: (1 ) For ce or coer cion is
used to accomplish the act; (2) The sexual penetration is accomplished without the consent of the
victim and t he de fend ant k now s or h as re aso n to k now at the time of the pene tration that th e victim
did no t con sen t; (3) T he de fend ant k now s or h as re aso n to k now that th e victim is m enta lly
defe ctive, me ntally inc apa citate d or p hysic ally help less ; or (4 )Th e sex ual pe netra tion is
accom plished by fraud.”

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purpose of sexual arousal or gratification. Tenn. Code Ann. § 39-13-50521 and §

39-13-50122 (1997 Repl.). Clearly, the offenses involve different elements.

Sexual battery requires proof that the sexual contact was for the purpose of sexual

arousal or gratification; whereas attempted rape does not. Attempted rape

requires proof of an attempted sexual penetration; whereas sexual battery only

requires proof of sexual contact as defined in the statute. Application of the

Blockburger test indicates that the offenses are not the “same” for double jeopardy

purposes; however, our analysis does not end here.

We must next consider the evidence upon which the convictions were

based. In this case, as in Denton, A.M.’s testimony that the defendant placed his

hand on her inner thigh and made a statement of desire was the essential

evidence used to establish both offenses. Moreover, this case involved only one

victim and one discrete act of touching. Finally, both the attempted rape and

sexual battery statutes are intended and designed to deter and punish sexually

assaultive conduct.

Notwithstanding the application of Blockburger, therefore, based upon the

particular facts giving rise to Mixon’s convictions and the common purpose served

by the two criminal statutes, we conclude that attempted rape and sexual battery

in this case are the “same” offense under the double jeopardy clause of our state

21
Sexual battery is defined as the “unlawful sexual contact with a victim by the defendant or
the defendant by a victim accompanied by any of the following circumstances: (1) Force or coercion
is used to accomplish the act; (2) The sexual contact is accomplished without the consent of the
victim and t he de fend ant k now s or h as re aso n to k now at the time of the cont act th at the victim did
not consent; (3) The defendant knows or has reason to know that the victim is mentally defective,
men tally incapacitate d or physic ally helpless; or (4) The sexua l contact is a ccom plished b y fraud.
(b) As u sed in this s ection, ‘coe rcion’ m eans th e threat of kidnap ping, exto rtion, force or violence to
be performed imme diately or in the future.”

22
Sexual contact is defined as “the intentional touching of the victim’s, the defendant’s or
any other p erson’s intimate p arts, or the intentional tou ching of the clothing covering the imm ediate
area of the victim’s, the defendant’s, or any other person’s intimate parts, if that intentional touching
can be reasonab ly construed as being for the purpose of sexu al arousal or gratification.”

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constitution. Accordingly, upon retrial, the defendant may not be convicted of both

attempted rape and sexual battery.

V.

CONCLUSION

We have concluded that the trial court erred by allowing the State to

impeach the defendant’s testimony with a prior sexual battery conviction and that

the error is not harmless. We therefore need not address the merits of the

defendant’s claim for relief pursuant to the extraordinary remedy of writ of error

coram nobis. Accordingly, the judgment of the Court of Criminal Appeals which

remanded this case to the trial court for further findings on the coram nobis claim

is reversed. The defendant’s convictions of attempted rape, attempted incest, and

sexual battery are vacated, and the case is remanded to the trial court for a new

trial. Because of the double jeopardy prohibition against multiple punishments for

the same offense, the defendant, upon retrial, may not be convicted of both

attempted rape and sexual battery.

______________________________
FRANK F. DROWOTA, III,
JUSTICE

Concur:
Anderson, C.J.,
Birch, Holder, Barker, JJ.

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