IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MAY SESSION, 1996 October 18, 1996
Cecil Crowson, Jr. STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9511-CC-00352Clerk Appellate C ourt ) Appellee, ) ) ) SEVIER COUNTY VS. ) ) HON. BEN W. HOOPER, II JOHN WAYNE SLATE, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPELLANT: FOR THE APPELLEE:
EDWARD C. MILLER CHARLES W. BURSON Public Defender Attorney General and Reporter P. O. Box 416 Dandridge, TN 37725-0416 HUNT S. BROWN Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243
AL SCHMUTZER, JR. District Attorney General
STEVEN R. HAWKINS Assistant District Attorney Sevierville, TN 37862
OPINION FILED ________________________ AFFIRMED IN PART; REVERSED AND REMANDED IN PART
JERRY L. SMITH, JUDGE
OPINION
Appellant John Wayne Slate appeals the judgm ent of the S evier Co unty Criminal Court imposing a twenty-five year sentence for his second degree murder conviction. Appellant presents the following issues for review: (1) whether the trial c ourt er red in re fusing to expu nge h is conviction for first degree murder and (2) whether his sentence is excessive.
After a review of the reco rd, we affirm the judgment of the trial court with regard to the expunction issue but remand this case for resentencing consistent with this opinion.
I. FACTUAL BACKGROUND
On Augu st 12, 1 988, a Sevie r County Criminal Court jury convicted Appellant of the first degree murder of David Jackson. Under the Tennessee Sentencing Refo rm A ct of 19 82, Ap pellan t receive d a se ntenc e of life imprison ment, enhance d by five years for use of a firearm in the commission of a felony. T he trial court ordered that the sentence run consecutive to a threeyear senten ce for attem pted jail esc ape. On direct appeal, this Court affirmed the judgment of the trial cou rt. See State v. S late, No. 101, 1989 WL 130712, at *4 (Tenn. Crim. A pp. No v. 1, 1989). Appe llant then filed a petition for postconvic tion relief. This C ourt aga in affirmed the judgm ent of the tria l court with regard to the firearm enhancement and the atte mpte d jail escape conviction but reversed the judgm ent of the tria l court with re gard to th e first degree murder conviction. The Court held that the evidence only established second degree
-2-murder and remanded the case to the trial cou rt for impo sition of an approp riate sentence and a judgment of conviction. See Slate v. Sta te, No. 03C01-9201-CR-00014, 1994 W L 1491 70, at *8 (T enn. C rim. App . Apr. 27, 1 994), perm. app. denied, (Tenn. Oct. 24, 1994). Upon remand, the trial court gave Appellant the opportu nity to be resentenced under the 1982 sentencing act or the 1989 sentencing act. App ellant, throu gh cou nsel, cho se to be resentenced under the Tennessee Sentencing Reform Act of 1989. The trial court then sentenced Appellant to twenty-five ye ars in the T ennes see De partme nt of Corre ction, a term to run con secutive to his firearm enhan ceme nt and to his attempted jail escape sentence. During th is senten cing hea ring, the trial court refused to expunge Appellant’s con viction for first degree mu rder.
II. EXPUNCTION OF FIRST DEGREE MURDER CONVICTION
Appellant first alleges that the trial court erred in refus ing to e xpung e his conviction for first degree mu rder. Appellant argues that the first degree murder conviction should have been expunged because this Court reversed the conviction and remanded to the trial court with instructions to enter a judgment for second d egree m urder.
Tennessee’s expunction statute provides the following:
All public records of a person who has been charged with a misdemeanor or a felony, and which charge has been dismissed, or a no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or a conviction which has by appeal been reversed, shall, upon petition by that person to the court having jurisdiction in such previous action, be removed and destroyed without cost to such person . . . .
-3-Tenn. Code Ann. § 40-32-101(a)(1) (Supp. 1996) (emphasis added). In denying Appe llant’s request for expunction, the trial court offered the following rationale:
[I]n effect, what has happened is the judgment of the trial court was reversed as to the conviction for first degree murder, and then they say the case is remanded for the purp ose of resentencing and the entry of a judgmen t of conviction for secon d degree m urder. To me, what’s basically happened would be the equivalent of bein g indic ted for fir st degree murder, the jury being instructed as to second degree murder and poss ibly lesser included, other lesser included offenses, and the jury in fact finding second degree murder. And I think in that situation I don’t believe you would be entitled at all to have the records expunged. That’s just part of the process, You get indicted for a higher degree of crime and convicted of a lesser degree.
W e agree with the foregoing rationale. Appellant’s second degree murder conviction, for all intents and purposes, simply replaces his first degree murder conviction. The expunction statute appears to provide relief only in situations where, for the reasons stated therein, criminal charges fail to result in any conviction. See, e.g., State v. Liddle , No. 01C01-9508-CR-00280, 1996 WL 275012, at *1 (Te nn. Crim. App. May, 24, 199 6); State v. McC ary, 815 S.W.2d 220, 222 (Tenn. Crim. App. 1991). Here, Appellant’s conviction has been reversed and re duce d but n ot reve rsed a nd dis miss ed, as we be lieve the expunction statute an ticipates. We know of no c ase s uppo rting A ppella nt’s proposition that his first degree murder conviction should be expunged because it was ultimately reduced to second degree murder. Therefore, we conclude that the trial cou rt properly d enied A ppellant’s reques t for expun ction.
III. SENTENCING
Appellant next alleges that his sentence is excessive. Without addressing any of the substantive issu es presen ted by Appe llant, we turn to the sentencing
-4-principle addressed in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993). According to Pearson,
[I]n order to com ply with the ex post facto prohibitions of the U.S. and T ennesse e Constitutions, trial court judges impo sing sentences after the effective date of the 1989 statute, for crimes comm itted prior the reto, mu st calculate the appropriate sentence under both the 1982 statute and the 1989 statute, in the ir entirety, and then impose the lesser sentence of the two. The practice of commingling the two laws and allowing the defendant the benefit of the most favorable provisions of each is confusing, and, as the State points out, could result in the defendant receiving a lesser senten ce than is authoriz ed by eith er Act in its entirety. The prohibition against ex post facto laws in bo th the United States an d the T enne ssee Cons titutions is satisfied by determining the appropriate sentence under each statute and imposing the lesser of the two sentences.
Id. at 884. Here, the record reveals that the trial court failed to calculate Appe llant’s sentence under both sentencing acts. T he Sta te con cede s that th is failure ma y require a reman d. W e believe th at it does.
According ly, this case is remanded to the trial court for sentencing in light of Pearson. If either party is dissatisfied with the sentence imposed by the trial court, the dissatisfied party may appeal as of right to this Court. The judgment of the trial court with regard to the expunction issue is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
___________________________________ JOHN H. PEAY, JUDGE
___________________________________ JOHN K. BYERS, SENIOR JUDGE
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