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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON August 5, 2003 Session 

### JASON REAVES v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County No. GS-01000 Arthur T. Bennett, Judge

No. W2002-02540-CCA-R3-CD - Filed Septem ber 12, 2003

The Defendant was convicted in gene ral sessions court

of Driving While Under the I nfluence and “Refusal to Submit.” He appealed his convictions and sentences to the Criminal Court for Shelby Co un ty. The Defendant failed to appear for his initial court hearing in criminal cour t, and a capias was issued for his a

rrest. T he Defe ndant wa s arres ted on the

capias, posted bond, and sub sequentl y appeared one hour late for a hearing in criminal court. The criminal court dismissed the appeal and remanded the case to general sessions court for the execution of the original judgments. This appeal ensued, in which th

e Defe ndant ar gues (a nd the Stat

e conce des) tha

t t he crim

inal court erred by dismissing the appeal and remanding the case to general sessions court. We agree and reverse the judgment of the criminal court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and N ORMA M C G EE O GLE , JJ., joined. Joseph S. Ozme

nt, Memphi s, Tenne ssee, fo r the app ellant, Jas on Reave s. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; J. Ross Dy er, AssistantAttorney Gene

ral; William L. Gibbons, District Attorney Gene

ral; Lee Coffee, Assistant Distric t Attorney Gene

ral; and W. Chris Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION The Defendant, Jason Reaves, was arrested on May 18, 1999, on charg es of Dri ving While Under the Influence, Public I

ntoxication, Driving withouta Driver ’s Lic ense, Refusal to Submit, and Leaving the Scene of an Accident. On Septem ber 30, 1 999, havi ng waiv ed his right to a jury trial,2

the Defendant pled not guilty and was tried in general sessions court. F ollowing the trial the Defendant

was convic ted of Driving While Under the Inf luence and Refusal to Submit. On November

9, 1999, the Defe

ndant wa s sentenc ed, and he imme diately appe aled his c onviction to criminal court an d demanded his r ig ht to a jury trial. A bond arr aignment held on December 13, 1999, and the Defendant failed to appear. T he court ordered that a capias be issued. The Defendant was arrested on the ca pias and proceeded with the ap peal of h is case. The St ate filed a motion to dismiss and remand the case based on the Defenda nt’s failur e to appear i n court on December 13, 1999. At the hearing he ld on the motion to dismiss, the Defendant appeared one hour late, and the court dis missed the Defend ant’s ap

peal due to his tardiness, remanding it back to the general sessions court. The Defe ndant is before this Court appealing the trial court’s order

. The State con cedes th at t he trial court erred when it remanded the c ase back to general sessions court. In our view, the following excerpt from the State’s brief accur ately sets forth the

law applicable to this issue:
Tennessee Co de An no ta te d § 27 -5 -1 08 pr ov id es fo r a n a pp ea l b y a defend ant in a criminal case from a genera l sessions court judgment to the circuit or criminal court. Section (c) stat

es that a ll appea ls “shall be heard de novo in the circuit court.” Tenn. Code Ann. § 27-5-108(c). In a de novo review, “the parties are entit led to a reexamination of the whole matter of law and fact.” State v. Cunningham , 972 S.W.2d 16, 18 (Tenn . Cri m. App . 1998 ) (quo ting Richards v. Taylor , 9 26 S.W.2d 569, 570 (Tenn. Ct. App. 1996) ). The circuit c ourt shoul d not be co ncerne d with what took place in the lower court. The matte r must be tr

ied as if no other hearing h as ever been heard. Ward v. Meharry Me dial College , 898 S.W.2d 181 (Tenn. 1995); see also Hohe nberg Bros. Co. v. Missouri Pac. R.R. Co. , 586 S.W.2d 117, 119 (Tenn. Ct. App. 1979). The court is required to try the matterand render judgment as if no judgment

had previously bee

n passed. Cunningham , 972 S.W.2d at 18. The issue presented in this case was previously addressed by

this Court in State v. Winebarger , 70 S.W.3d 99 (Tenn. Crim. App. 2000). In Winebarger , the defendant was an hour la

te to crim inal court fo r the announcement of her appeal. The court dismissed the appeal for “fa ilure to pr osecute ” and re

manded th

e case t o the general sessions court for

execution of the original sentence. Id. at 99. Ultimately , the Court in Winebarger

concluded that “ an app eal by a de fendant in a criminal case from general sessions court is of such significance that it should no t be dismiss ed merely because a defendant is one hour late f or court.” Id . at 102. Based on the af

orement ioned re asoning , the State conced ed “that the trial court er red in dismissing the defendant’s de novo appeal. The ruling of the circuit court should be reversed, and the defendant’s appeal to the circ uit court s hould be heard.”We find tha t the State ’s reas oning is sound and, therefore, reverse the tr ial court on these grounds.3

Ac co rd in gl y, the judgment of the trial court is REVERSED, and this case is remanded to the Criminal Court of Shelby County for de novo proceedings consistent with Cunningham and Winebarger

.

___________________________________ ROBERT W. WEDEMEYER, JUDGE