State of Tennessee v. Frederick J. Schmitz, Jr.

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 15, 2015

STATE OF TENNESSE v. FREDERICK J. SCHMITZ, JR.

Appeal from the Circuit Court for Dickson County

No. 22CC-2014-CR-125 David Wolfe, Judge

No. M2014-02377-CCA-R3-CD – Filed August 13, 2015

The defendant, Frederick J. Schmitz, Jr., appeals his Dickson County Circuit Court jury

conviction of driving without a license, for which he received a sentence of 30 days‟

probation. In this appeal, the defendant argues that the trial court lacked jurisdiction to

impose the conviction, that Tennessee Code Annotated section 55-50-301 is

unconstitutional, and that various procedural errors occurred attendant to his conviction.

Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Frederick J. Schmitz, Jr., McEwen, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; Dan M. Alsobrooks, District Attorney General; and Billy Miller,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On December 27, 2013, an officer pulled over the defendant for improper

passing and issued a citation for driving without a valid driver‟s license. See T.C.A. §

55-50-301(a)(1) (“No person, except those expressly exempted in this section, shall drive

any motor vehicle upon a highway in this state unless the person has a valid driver license

under this chapter for the type or class of vehicle being driven.”). On January 24, 2014,

the defendant appeared in the Dickson County General Sessions Court as required by the

citation. The record on appeal does not contain a transcript of that hearing but does

indicate that the case was continued to March 14, 2014. On that date, according to the

documentation in the record, the defendant waived his right to a preliminary hearing, and

the case was bound over to the grand jury. The defendant was arrested, and the court set

a bond of $250. No transcript of the general sessions court proceeding appears in the

appellate record. The Dickson County Grand Jury charged the defendant with driving

without a license in violation of Code section 55-50-301.

The defendant moved to dismiss the indictment under the terms of the

Uniform Commercial Code and for lack of “political, personam, and subject matter

jurisdiction, Venue and under the 11th amendment.” No transcript of any hearing on

these motions appears in the record on appeal.

At the conclusion of the October 22, 2014 jury trial, the jury convicted the

defendant as charged of driving without a license. The trial court imposed a sentence of

30 days‟ probation. The appellate record does not contain a transcript of either the trial

or the sentencing hearing. The defendant did not file a motion for new trial but did file a

timely notice of appeal.

In this appeal, the defendant claims that the trial court was without

jurisdiction to impose his conviction, that Code section 55-50-301 is unconstitutional,

that the general sessions court judge improperly practiced law from the bench, that the

prosecutor engaged in prosecutorial misconduct by using derogatory language when

questioning the defendant‟s wife at trial, and that the Dickson County Circuit Court Clerk

presented forged documents to the grand jury and to this court.

I. Jurisdiction

We consider first the defendant‟s claim that the trial court lacked subject

matter jurisdiction to impose his conviction because a lack of subject matter jurisdiction

would render his conviction void. See Brown v. Brown, 281 S.W.2d 492, 502 (Tenn.

1955) (“Courts derive their powers to adjudicate not from the parties, but from the law.

A Court acting without jurisdiction of the subject matter, or beyond the jurisdiction

conferred upon it, is therefore acting without authority of law and its judgments and

decrees in so acting are void and bind no one.”).

The meager record before us indicates that the defendant was pulled over in

Dickson County for improper passing. When the officer who effectuated the traffic stop

discovered that the defendant was in possession of an identification card, see T.C.A. §

55-50-336(a)(1) (“Any person eighteen (18) years of age and older, upon submission of a

satisfactory application and proof of identity, may be issued a photo identification license

restricted in use to identification only.”), but not a valid driver‟s license, see id. § 55-50-

336(b) (“The photo identification license shall have substantially the same content as a

driver license, but shall clearly indicate that it is not a driver license by having printed

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prominently thereon the following statement: „FOR IDENTIFICATION PURPOSES

ONLY--NOT VALID FOR VEHICULAR USE.‟”), the officer issued to the defendant a

citation for driving without a license as prohibited by Code section 50-55-301(a)(1).

Article VI, section 1 of the Tennessee Constitution provides: “The judicial

power of this State shall be vested in one Supreme Court and in such Circuit, Chancery

and other inferior Courts as the Legislature shall from time to time, ordain and establish;

in the Judges thereof, and in Justices of the Peace.” Tenn. Const. art. VI, § 1. Code

section 16-1-101 provides: “The judicial power of the state is vested in judges of the

courts of general sessions, recorders of certain towns and cities, circuit courts, criminal

courts, common law and chancery courts, chancery courts, courts of appeals, and the

supreme court, and other courts created by law.” T.C.A. § 16-1-101. Code section 16-

10-102 vests in the circuit courts of the state “exclusive original jurisdiction of all crimes

and misdemeanors, either at common law or by statute, unless otherwise expressly

provided by statute or this code.” Id. § 16-10-102; see also id. § 16-10-101 (“The circuit

court is a court of general jurisdiction, and the judge of the circuit court shall administer

right and justice according to law, in all cases where the jurisdiction is not conferred upon

another tribunal.”). Exercising the power granted via Article VI, the legislature created

31 judicial districts and vested jurisdiction of criminal cases arising in Dickson County in

the trial judges for the Twenty-third Judicial District. See id. § 16-2-506(23)(A).

Because the offense occurred in Dickson County, the Dickson County Circuit Court had

subject matter jurisdiction over the defendant‟s misdemeanor charge of driving without a

license.

The defendant also claims a lack of personal jurisdiction, arguing that he

“has no Contract with” the circuit court and that because he “was not engaged in

commerce,” he did not acquiesce to the court‟s jurisdiction. He failed to cite any

authority to support this proposition. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which

are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.”). Moreover, we have specifically rejected

an argument identical to the defendant‟s:

We reject the appellant‟s argument that he is exempt from the laws

of this state because he has never consented to nor granted the State

the authority to try him for criminal acts or omissions. Consent to

laws is not a prerequisite to their enforceability against individuals.

No person in the State of Tennessee may exempt himself or herself

from any law simply by declaring that he or she does not consent to

it[‟s] applying to them. To do so would result in sheer anarchy. We

must all abide by the valid laws, even the ones with which we do not

agree, or justice will be served against us for the violation. The

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appellant‟s presence at his trial in Humphreys County is sufficient to

establish jurisdiction over his person.

State v. Booher, 978 S.W.2d 953, 957 (Tenn. Crim. App. 1997) (citations omitted).

Finally, the record establishes that the defendant, a resident of this state as evidenced by

his possession of a state-issued identification card, drove a motor vehicle on a public

highway in Dickson County and then personally appeared in the Circuit Court of Dickson

County to stand trial in this case, thus vesting that court with personal jurisdiction.

II. Constitutionality of Code section 55-50-301

The defendant argues that Code section 55-50-301 is unconstitutional

because the statute‟s requirement that he obtain a license to drive has a chilling effect on

his federal constitutional right to travel freely in the United States. This court has

previously considered and rejected this same argument. See Booher, 978 S.W.2d at 955;

see also, e.g., State v. Paul Williams, a/k/a Paul Williams El, No. W2014-00231-CCA-

R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, Apr. 7, 2015).

In Booher, Booher, who had been convicted of violating the registration

law and driving without a license, argued in the trial court “that he was only exercising

his right as an „unenfranchised citizen of Tennessee‟ to use his private property on the

public highway over which every citizen has a right to pass” and that, “because he was

not engaged in commerce, his vehicle was not required to be registered.”1 Id. at 955.

Booher argued that those statutes requiring him to register his vehicle and obtain a

driver‟s license before operating a motor vehicle on the public roads of this state impeded

his constitutional right to freely travel throughout the state. We explained, however, that

although every American enjoys “a fundamental right to freedom of travel,” “[t]ravel, in

the constitutional sense . . . means more than locomotion; it means migration with the

intent to settle and abide.” Id. (citations omitted). Observing that the freedom “to

operate a motor vehicle on the public highways of this state” was a notion “wholly

separate from the right to travel,” see id., we reiterated that “[t]he ability to drive a motor

vehicle on a public highway is not a fundamental „right‟” but is instead “a revocable

„privilege‟ that is granted upon compliance with statutory licensing procedures,” see id. at

956 (citations omitted). We concluded that “our legislature, through its police power,

may prescribe conditions under which the „privilege‟ of operating automobiles on public

highways may be exercised” and that “[r]equiring persons to obtain a driver‟s license and

to register their automobiles with the State” was a reasonable exercise of that power. Id.

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The defendant also claimed in many of his pleadings that he, too, is an “unenfranchised citizen”

and that the driver‟s license law does not apply to him because he was “not engaged in commerce,” but,

unlike Booher, he stated that Tennessee is a “Fictitious Foreign State.”

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We see no reason to depart from the reasoning in Booher and conclude that

Code section 55-50-301 is not unconstitutional.

In a somewhat related issue, the defendant challenges Code section 55-50-

301 on grounds that obtaining a driver‟s license would require him to use his social

security number and, citing Revelations 13:15-18, that the use of this number would

require him to “carry the mark of the beast.” This court has previously rejected a similar

argument. In State v. Loudon, Loudon argued that “requiring a social security number for

a driver‟s license application and renewal” was an unconstitutional violation of the Free

Exercise Clause of the First Amendment, claiming, as does the defendant here, that social

security numbers were “now becoming the mark of the beast against which we are

warned in the Bible at Revelations 13:16–18, 14:11, and other places. . . . and I cannot

permit myself to be defiled with your number, as it would surely defile me.” State v.

Loudon, 857 S.W.2d 878, 879, 880 (Tenn. Crim. App. 1993). We concluded that a

legitimate state interest existed “which justifies the [,erstwhile] statutory requirement that

the driver‟s social security number appear on the face of the license issued by the

Department of Safety.” Id. at 882. Again, we see no justification to depart from our

earlier reasoning.

In sum, Code section 55-50-301 is not unconstitutional.

III. Remaining Challenges

As indicated above, the defendant also contends that the general sessions

court judge improperly practiced law from the bench and that the prosecutor engaged in

prosecutorial misconduct by using derogatory language when questioning the defendant‟s

wife at trial. Unfortunately, the appellate record does not contain a transcript of either the

general sessions court proceeding or the trial. The appellant bears the burden of

preparing an adequate record on appeal, see State v. Ballard, 855 S.W.2d 557, 560 (Tenn.

1993), which includes the duty to “have prepared a transcript of such part of the evidence

or proceedings as is necessary to convey a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal,” see Tenn. R. App. P.

24(b). If the appellant fails to file an adequate record, this court must presume the trial

court‟s ruling was correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim.

App. 1993). Because the defendant failed to include the transcripts in the record, we

cannot evaluate either claim and must presume that the rulings of the trial court relative

to these claims were correct.

The defendant also waived these issues by failing to raise them in a motion

for new trial, see Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented

for review shall be predicated upon error in . . . [any] ground upon which a new trial is

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sought, unless the same was specifically stated in a motion for a new trial; otherwise such

issues will be treated as waived.”); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn.

1997) (holding that a defendant relinquishes the right to argue on appeal any issues that

should have been presented in a timely motion for new trial but were not raised in the

motion); State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989), and any

attempt at plain error review is rendered impossible by the defendant‟s failure to prepare

an adequate record on appeal.

The defendant also claims that the Dickson County Circuit Court Clerk

presented forged documents to the grand jury and to this court. He does not specify

which documents he contends were falsified and has failed to include them in the

appellate record. He also failed to raise this issue in a motion for new trial. Under these

circumstances, he has waived our consideration of this issue.

Conclusion

We conclude that the trial court possessed both subject matter and personal

jurisdiction to impose the defendant‟s conviction; that Code section 55-50-301 is not

unconstitutional; and that the defendant has waived appellate review of his remaining

issues. Accordingly, we affirm the judgment of the trial court.

__________________________________

JAMES CURWOOD WITT, JR., JUDGE

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