State v. Sammy Golden ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
APRIL 1997 SESSION
September 10, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 02C01-9611-CR-00393
)
Appellee )
) SHELBY COUNTY
V. )
) HON. JAMES C. BEASLEY, JR.,
SAMMY L. GOLDEN, ) JUDGE
)
Appellant. ) (Habitual Motor Vehicle Offender)
)
)
For the Appellant: For the Appellee:
Joseph S. Ozment John Knox Walkup
217 Exchange Avenue Attorney General and Reporter
Memphis, TN 38103
Janis L. Turner
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
John W. Pierotti
District Attorney General
Lee V. Coffee
Assistant District Attorney
201 Poplar Street
Suite 301
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED
William M. Barker, Judge
OPINION
Appellant, Sammy L. Golden, appeals as of right the Shelby County Criminal
Court’s order declaring him an habitual motor vehicle offender. See Tenn. Code Ann.
§§55-10-601 to -618. On appeal, he contends that the procedure outlined in the
Habitual Motor Vehicle Offender Act (“the Act”) violates the constitutional protection
against double jeopardy. He also challenges a 1991 amendment to the Act as the
application of an ex post facto law. We find no merit to either of appellant’s
arguments and affirm the ruling of the trial court.
At the hearing on the State’s petition to declare appellant an habitual offender,
the State offered proof that appellant was convicted of driving under the influence in
1990 and again in 1992. In 1995, appellant was convicted of reckless driving. The
combination of these three offenses in a five year period was sufficient under the Act
for suspension of appellant’s driver’s license and declaration as an habitual motor
vehicle offender. See Tenn. Code Ann. §55-10-603(2)(A) (Supp. 1996). In contesting
the State’s petition, appellant filed a motion to dismiss based upon double jeopardy
grounds. After accepting proof and hearing argument, the trial court overruled the
motion and declared appellant an habitual motor vehicle offender.
Appellant argues that the institution of a separate proceeding to adjudicate an
individual as an habitual motor vehicle offender, after conviction and sentence have
been pronounced on the triggering criminal acts, violates principles of double
jeopardy. Appellant does not refute the State’s authority to deprive a person of the
privilege to drive, rather he attacks the deprivation when accomplished in a separate
proceeding.1
1
In 1995, the legislature amended the statute to permit district attorneys to seek habitual motor
vehicle offender status against an offender at the same proceeding which determines the guilt or
innocen ce o n the offense m aking the offende r eligible for this sta tus. See Tenn. Code Ann. §55-10-
618(b) (Supp. 1996). This am endm ent sim ply provided an alternative procedure; the Sta te m ay still
pursue this classification of the offender in a separate proceeding. Tenn. Code Ann. §55-10-618(a)
(Supp. 1996 ).
2
Our supreme court has previously addressed the double jeopardy argument
under the Act. State v. Conley, 639 S.W.2d 435 (Tenn. 1982). In Conley, the court
said that a proceeding to declare a defendant an habitual offender and revoke his
driving privileges does not subject the offender to double jeopardy. Id at 437. The
court explained that the prohibited multiple “punishment” at the heart of double
jeopardy is the deprivation of the liberty of a person or the imposition of a fine when
inflicted to vindicate public justice. Id at 436. Since revocation of a driver’s license is
nothing more than deprivation of a privilege, which is remedial in nature and not
intended to have the effect of imposing punishment, there is no double jeopardy. Id.We find nothing significant about the fact that the withdrawal of this privilege may be
accomplished in a separate proceeding.
Appellant urges us to reconsider the holding of Conley in light of more recent
United States Supreme Court authority on double jeopardy. See Montana
Department of Revenue v. Kurth Ranch, 511 U. S. 767, 114 S.Ct. 1937, 128 L.Ed.2d
767 (1994); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487(1989). Contrary to appellant’s assertion, panels of this Court have reconsidered the
holding of Conley in light of this authority and reiterated its validity.2 See State v.
Milton Spears, Jr., No. 02C01-9606-CR-00197 (Tenn. Crim. App. at Jackson, July 10,
1997); State v. Randy A. McClure and Teddy G. Ownby, No. 03C01-9605-CC-00198
(Tenn. Crim. App. at Knoxville, January 29, 1997). See also State v. Jonathan
Malady, No. 02C01-9506-CR-00166 (Tenn. Crim. App. at Jackson, July 26, 1996)
(upholding Conley in light of authority on double jeopardy and civil forfeitures). In
similar fashion, we believe the rationale and holding of Conley remains sound.
Moreover, we are bound by rulings of our supreme court.
In McClure, a panel of this Court evaluated the Act in light of Halper and also
considered recent Supreme Court authority on double jeopardy in the context of civil
2
W e realize that these opinions were not released until after appellant’s brief were filed.
3
forfeitures of property. In analogizing to civil forfeiture procedures, a panel of this
Court held that the forfeiture of a driver’s license, a civil proceeding intended to be
remedial in nature and not punitive, does not violate principles of double jeopardy.
Slip op. at 4. In Spears, a panel of this Court specifically considered the Conley
holding in terms of Halper and Kurth Ranch and found nothing to indicate that such
authority would change the holding of Conley. We agree that the authority upon which
the appellant relies would not alter our supreme court’s holding in Conley.
Appellant also contends that application of the Act to his offense violates the
prohibition against ex post facto laws. The Act was amended in 1991 and enlarged to
encompass offenders who accumulated three of the enumerated offenses within a five
year period. Tenn. Code Ann. §55-10-603(2)(A) (Supp. 1992). Because one of
appellant’s qualifying convictions occurred prior to 1991, appellant argues that
application of the statute to him constitutes an ex post facto law. This argument is
without merit.
The constitutional prohibition against ex post facto laws applies only to penal
statutes which punish the offender and are inapplicable to civil penalties. State v. Carl
G. Laney, et al, No. 03C01-9303-CR-00088 (Tenn. Crim. App. at Knoxville, November
23, 1993). As discussed above, the declaration of an individual as an habitual
offender is considered a civil penalty, not a criminal prosecution. Conley, 639 S.W.2d
at 437. See also Bankston v. State, 815 S.W.2d 213, 215 (Tenn. Crim. App. 1991).
Therefore, any contention that application of the statute is an ex post facto law is
untenable.
Appellant argues that the rationale of Laney is inapplicable, reasoning that the
Act does impose a punishment “since the legislature has now determined that the
declaration is a sentence and a sentence equates to punishment.” This contention is
not supported by the citation of authority and we are unaware of any such indication
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by the legislature. The holding of Laney remains valid and the application of the
statute to appellant does not violate the provision against ex post facto laws.
We conclude that both of appellant’s arguments are devoid of merit and affirm
the order of the trial court declaring appellant an habitual motor vehicle offender.
_______________________________
William M. Barker, Judge
____________________________
Joseph M. Tipton, Judge
____________________________
David G. Hayes, Judge
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