State v. Richard Powers ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1999 SESSION FILED
April 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. NO. 02C01-9808-CC-00242
)
) Fayette County
V. )
) Honorable Jon Kerry Blackwood, Judge
)
RICHARD R. POWERS, JR., ) (Driving Under the Influence)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID A. MCLAUGHLIN JOHN KNOX WALKUP
WILLIAM F. BURNS Attorney General & Reporter
Waring Cox, PLC
50 N. Front St., Suite 1300 ELIZABETH T. RYAN
Memphis, TN 38103 Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
302 Market Street
Somerville, TN 38068
OPINION FILED: ___________________
AFFIRMED AS MODIFIED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Richard R. Powers, Jr., appeals on two certified questions
of law. The Circuit Court of Fayette County, Tennessee, denied the defendant’s
motion to suppress certain evidence regarding his arrest for driving under the
influence. The defendant moved to suppress the results of both the chemical
breath test and two of three field sobriety tests. After the trial court denied his
motion, the defendant pleaded guilty but reserved appeal under the certified
questions of law. We conclude the trial court erred in entering two DUI
convictions based upon the same conduct. We affirm one DUI conviction and
set the other aside.
BACKGROUND
The record submitted to this Court does not contain the transcript of the
preliminary hearing, and few facts were presented at the suppression hearing.
Therefore, the record before this Court contains little background information.
The record omits details regarding the basis for the stop, the initial interaction
between the officer and the defendant, the officer’s observations, and one field
sobriety test not addressed by the defendant’s questions of law.
However, the record indicates that the officer stopped the defendant for
speeding. The officer subsequently administered three field sobriety tests. The
defendant claims that his responses to two of the tests, given while in custody
and without benefit of a “Miranda” warning, should be suppressed. He argues
that his reciting the alphabet from “L” to “Z” and his reciting a series of numbers
in reverse order both constitute self-incrimination, in violation of protection
granted by the Fifth Amendment to the United States Constitution.
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After arresting the defendant, the officer apparently advised the defendant
that he would lose his operator’s license for six months, not the actual term of
one year, if he did not submit to a chemical breath test. The defendant also
asserts that the officer failed to advise him that he could obtain an independent
alcohol test. Thus, the defendant argues, the results of the chemical breath test
should be suppressed because the officer did not operate in strict compliance
with the applicable law.
ANALYSIS
The defendant presents his certified question under Tenn. R. Crim. P.
37(b)(2)(i):
An appeal lies from any order or judgment in a criminal
proceeding where the law provides for such appeal, and
from any judgment of conviction. . . . (2) Upon a plea of
guilty or nolo contendere if: (i) Defendant entered into a
plea agreement under Rule 11(e) but explicitly reserved
with the consent of the state and of the court the right to
appeal a certified question of law that is dispositive of the
case.
The trial court’s Order comprises a statement of the certified question, sufficient
to “clearly identify the scope and the limits of the legal issue reserved,” and the
requisite consent from the trial judge and from the state for an appeal on a
dispositive question of law. See State v. Preston, 759 S.W.2d 647, 650 (Tenn.
1988). An issue is dispositive when the appellate court must either affirm or
reverse and dismiss on that issue. See State v. Wilkes, 684 S.W.2d 663, 667
(Tenn. Crim. App. 1984).
The defendant contends the results of the chemical breath test are
subject to suppression since the implied consent form incorrectly advised him
that his driving privileges would be suspended for six months, rather than the
correct time of one year, if he refused to submit to the test. See Tenn. Code
Ann. § 55-10-406(a)(3). This Court has previously concluded that an officer’s
failure to give the license suspension warning does not warrant suppression of
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the blood alcohol test. State v. Jerry Huskins, C.C.A. No. 01C01-9707-CR-
00253, Putnam County (Tenn. Crim. App. filed September 29, 1998, at
Nashville). We similarly conclude that erroneously advising a defendant of a
six-month suspension rather than the proper one-year suspension does not lead
to suppression. Common sense also dictates that if the defendant was willing to
consent to the test believing his refusal would lead to a six-month suspension, he
certainly would have consented had he known the suspension would have been
for one year. This issue is without merit.
This Court notes that the trial court entered two separate judgments of
conviction for two counts of DUI based upon the same conduct. Count 1
charged driving under the influence of an intoxicant pursuant to Tenn. Code Ann.
§ 55-10-401(a)(1), and Count 2 charged driving with an alcohol concentration of
.10% or more pursuant to Tenn. Code Ann. § 55-10-401(a)(2). The statute does
not contemplate separate offenses based upon the same conduct as this would
be a double jeopardy violation. See generally, State v. Denton, 938 S.W.2d 373,
378-83 (Tenn. 1996).
We have determined that the chemical test was not subject to
suppression; therefore, defendant’s conviction pursuant to Tenn. Code Ann. §
55-10-401(a)(2) is proper. This renders moot the other certified question relating
to the propriety of certain field sobriety tests absent Miranda warnings since it
related to the conviction pursuant to Tenn. Code Ann. § 55-10-410(a)(1).
CONCLUSION
We affirm the judgment of conviction under Count 2 of the indictment
alleging that the defendant unlawfully drove a motor vehicle with an alcohol
concentration of .10% or more. We remand this matter to the trial court with
instructions to set aside the separate DUI conviction under Count 1 of the
indictment.
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_________________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
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