The opinion
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 Court
)
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 W ayne Slate appeals the judgment of the Sevier County
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 court erred in refusing to expunge his conviction for first degree
murder and (2) whether his sentence is excessive.
After a review of the record, 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 August 12, 1988, a Sevier County Criminal Court jury convicted
Appellant of the first degree murder of David Jackson. Under the Tennessee
Sentencing Reform Act of 1982, Appellant received a sentence of life
imprisonment, enhanced by five years for use of a firearm in the commission of
a felony. The trial court ordered that the sentence run consecutive to a three-
year sentence for attempted jail escape. On direct appeal, this Court affirmed the
judgment of the trial court. See State v. Slate, No. 101, 1989 W L 130712, at *4
(Tenn. Crim. App. Nov. 1, 1989). Appellant then filed a petition for post-
conviction relief. This Court again affirmed the judgment of the trial court with
regard to the firearm enhancement and the attempted jail escape conviction but
reversed the ju d g m e n t of th e tr ia l court w ith regard to
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ßßßßßßßßßpportunity to be resentenced under the 1982 sentencing act or the
1989 sentencing act. Appellant, through counsel, chose to be resentenced under
the Tennessee Sentencing Reform Act of 1989. The trial court then sentenced
Appellant to twenty-five years in the Tennessee Department of Correction, a term
to run consecutive to his firearm enhancement and to his attempted jail escape
sentence. During this sentencing hearing, the trial court refused to expunge
Appellant’s conviction for first degree murder.
II. EXPUNCTION OF FIRST DEGREE MURDER CONVICTION
Appellant first alleges that the trial court erred in refusing to expunge his
conviction for first degree murder. 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 degree murder.
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
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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 . . . .
Tenn. Code Ann. § 40-32-101(a)(1) (Supp. 1996) (emphasis added). In denying
Appellant’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 purpose of resentencing and the entry of a
judgment of conviction for second degree murder.
To me, what’s basically happened would be the
equivalent of being indicted for first degree murder, the
jury being instructed as to second degree murder and
possibly 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 W L
275012, at *1 (Tenn. Crim. App. May, 24, 1996); State v. McCary, 815 S.W .2d
220, 222 (Tenn. Crim. App. 1991). Here, Appellant’s conviction has been
reversed and reduced but not reversed and dismissed, as we believe the
expunction statute anticipates. W e know of no case supporting Appellant’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 court properly denied Appellant’s request for expunction.
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III. SENTENCING
Appellant next alleges that his sentence is excessive. Without addressing
any of the substantive issues presented by Appellant, we turn to the sentencing
principle addressed in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).
According to Pearson,
[I]n order to comply with the ex post facto prohibitions of
the U.S. and Tennessee Constitutions, trial court judges
imposing sentences after the effective date of the 1989
statute, for crimes committed prior thereto, must calculate
the appropriate sentence under both the 1982 statute and
the 1989 statute, in their 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 sentence than is authorized by either Act in its
entirety. The prohibition against ex post facto laws in both
the United States and the Tennessee Constitutions 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
Appellant’s sentence under both sentencing acts. The State concedes that this
failure may require a remand. W e believe that it does.
Accordingly, 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.
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JERRY L. SMITH, JUDGE
CONCUR:
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___________________________________
JOHN H. PEAY, JUDGE
___________________________________
JOHN K. BYERS, SENIOR JUDGE
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