recognizing that “‘the sentencing phase of the trial is concerned only with the punishment and does not in any sense constitute a second trial for the same offense or create a separate and additional offense’ ”
How later courts described this case
- recognizing that “‘the sentencing phase of the trial is concerned only with the punishment and does not in any sense constitute a second trial for the same offense or create a separate and additional offense’ ”
Written by the judges who cited it.
The opinion
ON STATE’S PETITION TO REHEAR
The State has filed a respectful petition to rehear, averring:
(1) The Court’s opinion is in conflict with a prior decision and principle of law.
(2) The Court’s opinion misapprehends a proposition of law.
(3) The Court’s opinion relies on a matter of law upon which the State has not been fully heard.
Among the issues raised by defendant he argued that the trial court erred in denying his motion for acquittal at the close of the State’s case.
In a rather perfunctory response to this issue, consisting of one short paragraph in *121 the State’s appellate brief, it was insisted the motion for acquittal at the conclusion of the State’s proof was waived by presenting evidence, under the authority of Mathis v. State, 590 S.W.2d 449 (Tenn.1979).
This Court completely reviewed the evidence, found it sufficient to support the jury’s verdict and held that defendant was not entitled to an acquittal.
In passing we noted that:
“Tenn.R.Crim.P. 29(a) clearly and explicitly provides that if a defendant’s motion for judgment of acquittal at the close of the evidence offered by the State is not granted, the defendant may offer evidence without having reserved the right.”
We stated that “any case law to the contrary has been specifically preempted by the rules.”
It is this statement which impels State’s counsel to differ with the Court, submitting that Tenn.R.Crim.P. 29 and Mathis v. State, supra, are not inconsistent. It is insisted that the rule in question does not preempt the holding in Mathis .
After reviewing our statement in the record and seriously contemplating the matter at length we do not believe the statement in question conveys the impression attributed to it by counsel.
Mathis , as we review it, turned on an entirely different issue. In that case the trial judge erred in taking under advisement the defendant’s motion for a “directed verdict” made at the conclusion of the State’s proof. This Court held that the defendant compounded the error by not standing on his motion or raising any objection to the action of the trial court. In fact, he cross-examined a co-defendant before announcing that he rested his case. In discussing the appropriate procedure to be employed by a defendant who moves for acquittal at the conclusion of the State’s proof this Court cited authorities far predating the criminal procedure rules and the statutes authorizing motions for acquittal in criminal cases. These authorities dealt with civil cases and the advantages accruing to a defendant who chose to except to the action of the Court in overruling a motion for directed verdict.
We do not mean to imply that a defendant does not waive a motion for acquittal made at the end of the State’s proof by not standing on his motion and proceeding to offer evidence. See State v. Thompson, 549 S.W.2d 943, 945 (Tenn.1977). We do not think our original opinion raises that connotation.
In substance, we do not find any conflict in our opinion with any prior decision or principle of law. Nor do we find any misapprehension of any proposition of law. The Court has lent its consideration to the matter of law upon which the State avers it has not been fully heard.
The petition to rehear is denied.
HARBISON, C.J., and FONES, COOPER and DROWOTA, JJ., concur.