### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs N ovembe

r 29, 2001 STATE OF TENN ESSEE v. STEPHEN BART WOOD Appeal from the Criminal Court for Davidson County Nos. 3098 & 3099 Steve R. Dozier, Judge

No. M2001-00872-COA-R3-CD - Filed May 7, 2002

The General Sessions Court of Davidson County f ound the defendant guilty of thirty-six violations of an order of protection and ordered him to serve te n days for e ach violation. Each sentence was to be served consecutively and day-f or-day. The

defendant appealed

to the Criminal Court and that court affirmed. We find that the Criminal Court lacked subject matter jurisdiction to hear the appeal and that the sentence should be vacated. Because Tenn. Code Ann. § 36-3-601(2) (F) now provides for an appeal in the Circuit Court from a final ruling on an order of protection by a

General Sessions Court, we remand this cause to the Circuit Court for a review of the se

ntence f or excess iveness, in accordance with the guidelines we adopt in this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

Reversed; Vacated and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R
. and W IL LI AM B. C AIN , JJ., joined.
C. Dawn Deaner and Jonathan F. Wing, Nashville, Tenne ssee (on appea l); Jonathan F. Wing and Holly Ruskin, Nashville, Tennessee ( at hearing), for the appellant, Stephen B art Wood. Paul G. Summers , Attorney General & Repo rter; Eliz abeth B. Marney, A ssistant Attorney Gene ral (on appeal ) and A ngelita Dalton, Assistant District Attorney General, Nashville, Tennessee (at hearing), for the appellee , State of Tennessee. OPINION
I. Connie Robbrecht Wood obtained an Order of Protection aga inst her husban d, forty -yearoldStephen Bart Wood, on August 9, 2000. The order, which was issued by the General Sessions Courtof Davidson County, prohibited Mr. Wood from abusing, thre atening to abuse, or committing violentacts against his wife. On A ugust 25, M s. Wood asked the cour t to modify

the orde r to prohibit social contact as well. She claimed that he had called he r numerous times at work and on her cell phone. The court gra nted the request on September 11, 2000.1 Tenn. Code. Ann. § 27-3- 131 applies to misdemeanor cases, and declares that i n such cases, “t he defendant may . . . appeal a

verdict of gui lty or the s entence imposed or both t o the ci rcuit court or crimi nal court fora trial de novo with or w ithout a j ury.” -2- On December 29, 200 0, Ms. Woo d swore out an affidavit which led to the issuance of an arrest warrant against Mr. Wood. The affidavit stated that Mr. Wood had s ent her two letters on December

2 and 12, 2000; that he had come to her residence and spoken to her on December 25 and 28; that he hadtelephoned her at home five times on December 25, and 28 times on December 28; and that he had called her at work nine times on Dec ember 26, and 44 times on December 27.
A second w arrant

was iss ued on Jan uary 23, 2001, supported by another affidavit, which stated that since the issuance of the first warrant, Mr. Wood had called his wife at home 11 6 times; had called her at work 67 times; had left one letter at her home, another in her mailbox, and two in the windshield of her car; and had sent flowers a nd a card to her at work.
Mr. Wood was arrested on both of these war rants. He pled not guilty, but the G eneral Sessions Court found h im guilty of e ighteen counts of contempt on the first warrant and e ighteen counts of contempt on the second warrant. He was se ntenced to ten day s for each violation, for a total sentence of

360 days, to be served consecutively, da y for day . The judge apparently believed that he could not sentence the defendant to more than six months on any single warrant.
Mr. Wood appealed to the Criminal Court for Davidson County pur s uant to Tenn. Code. Ann. § 27-3-131. 1 Though he requested a jury trial in his application, the request was waived at the commenc ement of

the hear ing in Criminal Cour

t. During the hearing, which was conducted onMarch 2, 2001, the defendant conceded tha t he was in contempt of court, and asked only to be heard on the question of sentenc ing. He

argue d first that because only

two warrants were issued in this case, the maximum incarceration he could have received was ten d ay s per wa

rrant. H e then co ntended t hat even if the thirty -six counts of criminal contempt were found to be justified based on the warrants, ther e were no grounds presented f or the se nt en ce s t o r un co ns ec ut iv el y. The defendant noted that the Sentencing Commission Comments appended to Tenn. Code. Ann. § 40-35-115 of the Criminal Sentencing Reform Act of 1989 state that

“consecutive sentencing should not routinely be imposed

in crimina

l cases a nd the ag greg ate maximum of c onsecuti ve terms must be reasonably

related to the severity

of the of fenses invol ved.” See also Gray v. S tate , 538 S.W.2d 391 (Tenn. 1976), and State v. Taylor , 739 S.W.2d 227 (Tenn. 1987).
He further

contended that eve

n if he shouldbe re qu ir ed to se rv e h is se nt en ce s c on se cu ti ve ly, he should be entitled to other benefits of the Criminal Sentencing Reform Act, such as the pr ovision which states tha

t when se ntencing a misdeme anor def

endant, the judge must “fix a percentage of the sentence which the defendant shall serve,” ranging from zero to seventy-five percent. Tenn. Code Ann. § 40 -35-302(d). We note that under that statute, after the defe ndant has served the requ ire d-3-

percent age, he b ecomes eligible for release, but not nec essarily entitled to rele ase. See State v. Palmer , 902 S.W.2d 391 (Tenn. 1995). During the hear

ing in Criminal Cour

t, Mr. Wood s tated tha

t after h e was se rved wit h th e Order of Protection, he was in a daze, and didn’t really under stand its import. He admitted, however, that when he finally unde

rstood it, he still felt compelled to “do th e decent thing, and take care of a wife and a child that’s gonna be there soon.” Under further

questioning, he stated that he now realized that he was to have no contact whatsoever with his wife e xcept through a

court order. The prosec utor argue d, however, that the defendant totally disrespected the orders of the Gener al Sessions Court, an d could po ssi bly disrespect an order of the Criminal Court as well. At the conclusi on of the h

earing , the tria

l court too

k the matte

r under a dvisemen t. The trial court’s order, issued on March 7, correctly

noted that since the hearingwas de novo, the court was not charged with the responsibility of reviewing the propriety

of the sentence imposed by the Gene

ral Sessio ns Court. Ra

ther, the court sta ted, its d uty was to make

an independent determination of what the appropriate sentence should be

. The court rejected all the defendant’s ar guments for leniency , noting that the co ntem pt s tatutes gave it the authority to imprison the defendant for ten day s and/or fine him for eve r y violation he committed, as well as to impose consecutive sentences for cr iminal contempt. See Tenn. Code Ann. § 29-9-10 2, 103 and Tenn. Cod

e Ann. § 40 -35-115(

b)(7). T he court then stated that it found the appropriate sentence to be “ten days in jail for eve

ry violation to be served

day-for -day at 100%. Thus the total incarceration is three hundred sixty days.”
Mr. Wood filed a timely Notice of Appe al in the Court of Criminal Appeals, which in most cases is the app

ropriate place to lodge an appeal from the c riminal courts. However, the State filed a Motion to Transfer the appeal to the Court of Appeals. See Tenn. R. App. P. 17. The State observed that Tenn. Code Ann. § 16-4-108(b) gives the Court o f Appea ls appella te jurisdiction ove r civil or criminal contempt arising out of a civil matter, and contended that proceedings instituted under the Domestic Abuse statute are civil and protective, not

criminal and punitive. On Novemb er 19, 20 01, the Cou rt of Criminal Appe als g ran ted the State’s motion, and transfe rred thisappeal t

o this Court

. II. The firs t question

we must an swer is which court has jurisdiction to hear an appe al from a general sessions court of a finding of criminal contempt arising out of a civil matter. The difficul ty comes from the multiple ways we trea t criminal contempt. On one hand we say criminal contempt is quasi -cr iminal, Anderson v. Daughe rty , 191 S.W. 974 (Tenn. 1917); therefore guilt must be provedbeyond a re asonable doubt, Shiflet v. State , 400 S.W.2d 542 (Tenn. 1966); and the prosecutor may not appeal an acquittal, Archer v. Archer , 907 S.W.2d 4 12 (Tenn . Ct. App . 19 95) . It is eno ugh of a crime th at the dou

ble jeopa rdy provision s of the sta

te and fe deral c onstitution s prohibit a2 In 2001 the Gener al Ass embly added s ubsection F t o Tenn. Code Ann. § 36-3-601( 2) which now prov ides: Any appeal from a fi nal ruli ng on an order of protection by a g eneral sessions court or by an offici al authorized to is sue an order of prot ecti on under thi s subdi visi on (2) shall be to the cir cuit or chancery court of t he count y. Such appeal shal l be f il ed wit hin t en (10) days and s hall be hear d de novo. -4- subsequent

contempt prosecu tion afte r a conte mpt proceeding st

arts and come s to an inconclusive end in another court. Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000).
On the ot her han d, it is no t enou gh of a crime to prevent a prosecution for kidnapping after the accused is found guilty and punished for criminal contempt for the same conduc t. State v. Sammons , 656 S.W.2d 862 (Tenn. Crim. App. 1982). See also State v. Winningham , 958 S.W.2d 740 (Tenn. 1997). It does not have to be initiated by an indictment or pre sentment. Green v. United States , 356 U.S. 165 at 184 (1958). Nor doesthe right to a tria l by jury , that ord

inarily attache s to any prosecution whereincarceration may be imposed, attach to a prosecution for criminal contempt under the general contempt statutes. Pass v. Sta te , 184 S.W.2d 1 (Tenn. 1944); Ahern v. Ahern , 15 S.W.3d 73 (Tenn. 2000 ); cf. State v. Dusina , 764 S.W.2d 766 (Tenn. 1989). Since criminal contempt proceedings are not fully criminal, Gompers v. Buck ’s Stov e & Range Co. , 221 U.S. 418 (1 911), we conclude that they do not fall under Tenn. Code Ann. § 27-3- 131 nor under

Tenn. R. Crim. P. 5(c)(2) which provide for misdemeanor appea ls from the general sessions court to circuit or criminal court. Therefore, these statutes/rulesdid not give the Criminal Courtof Davidson County the jurisdiction to hear the a ppeal of the contempt charges ar ising from the violations of the General Sessions Court’s order of protection. Although the jurisdictional question has not been r

aised by the part ies, we f eel comp elled to d

eal with it and do so

under Tenn. R. App. P. 13(b)(3). See Dishmon v. Shelby State Community College , 15 S.W.3d 47 7 (Tenn. Ct. App. 1999).
III. If not to the criminal court, then where does one appeal a sentence of criminal contempt for violating an order of protection? When the legislature created ord ers of pr otection in 1979 it provided that they

could be i ssued by

other courts in ad dition to the ones that traditionally hear domestic cases. I n Davidso n County

the cour ts having jurisdict i on inc luded “any c ourt of record withjurisdiction over domestic relations matters and the general sessions courts.” Tenn. Code Ann. § 36-3-601(2)(B). Until the 2001 session of the Gene ral Asse mbly , howeve

r, the dom

estic abuse statutes were silent on the question of where to appeal an order of protection granted by the general sessions c ourt. 2
The question had previously bee n submitted to the Attor ney Gene ra l of Tenne ssee, and in Opinion No. 98-043, 1998 WL 129995, the Attorney General said that because the g eneral sessions court was exercising co ncurre

nt ju ri sdiction with the courts of record, an appeal from the g eneral sessions court should go directly to the Court of Appeals. In Collins v. Pharris , No. M1999-00588--5-

COA-R3-CV, 2001 WL 219652 (Tenn. C t. App. Mar. 7, 2001), this court held that the Attorney General was correct. See also G arrison v. Burc h , No. M1999-0281 9-COA-R3-CV, 2001 WL 47001, at *1 n.2 (Tenn. Ct. App. Jan. 22, 2001). We think the same reasoning would have applied to a contempt proceed ing for violat ing an order of protection. Without specifically deciding the question, we have accepted a

nd decide d domestic abuse contempt cases on direct appeal fr om the general sessions court. See Sta te v. Gray , 46 S.W.3d 749 (Tenn. Ct. App. 2000). Of course, with the passage of Tenn. Code Ann. § 36-3-601(2) (F) that question may now be moot.
IV.
We vacate the judgment of the Criminal Court of Davidson County since jurisdiction of the appeal from the G

eneral Sessions Court lay

in this cou

rt. But no w we must d

ecide if the appe al to the Criminal Court kept the appeal alive until it finally re ached this Court. The defendant filed two documents in the General Sessions Court, eachpurporting to appeal the two warr

ants unde r which he was ch arged with conte

mpt. Each

contain ed th e following paragraph:
Comes now the defendant, by and through

counsel, pursuant

to TCA § 27-3-131(a) and hereby

makes formal demand for appeal of the Gene ral Sessions judgment in the ab ov e- re fe re nc ed ma tt er , t o t he Cr im in al Co ur t o f N as hv il le -D av id so n C ou nt y. We think the q

uoted par agrap h complie s with

the content requirements for a notice of appea l. See Tenn. R. App. P. 3(f). It specifies the par ty taking the

appeal, names the judgments from which relief is sought and it designa tes (although wr

ongly ) the cou rt to which the appe al is take n. But Rule 3(f) also says that

an appeal should not

be dismissed for informality of for m or title of the notice of appeal. And Tenn. Code Ann. § 16-4-108 (a)(2) provides that appealstaken to t

he wrong appella te court shall be transferred to the court having jurisdiction. We think the appeal was still alive when it finally arrived he

re. V. If we are correct so far, disp osing of this appeal remains a problem. We are handicapped, of course, by the

absenceof a record from the Genera l Sessions Court. Therefore, the review here must necessarily be

confinedto the questions of law raised by the appellant. See Dispeker v. New Southern Hotel Co. , 373 S.W.2d 904 (Tenn. 1963); Hutchison v. Pybur n , 567 S.W.2d 762 (Tenn. Ct. App. 1977). The appellant argues that since all the vio lations of

the orde r of prot ection we re listed in two warran ts th e m ax im um pe na lt y to wh ic h h e c ou ld be se nt en ce d w as tw en ty d ays in jail, ten days for eachwarrant. See Tenn . Code Ann. § 29- 9-10 3. We

disagree. Tenn. R. Crim. P. 42(b) governs how notice of a cha rge of indirect criminal contempt can be given: “The notice shall be given orally by the judge in open court in the presence of the def endant or, on ap plication of the district attorney-6-

general or of an a

tt orney appointed b y the court for that purpose, by an or

der to show cause or an order of arrest.” The

notice may spec ify

multiple violations so long as they are sufficiently distinct to support se

parate convic tions. Cable v. Clemmons , 36 S.W.3d 39 (Tenn. 2001). The appellant does not dispu te the result in Cable v. Clemmons bu t a rg ue s t ha t t ha t p ro ce ed in g w as st ar te d b y a petition and not a warrant. We think that is a distinction without a difference. The warrant used in this case served the purpose of giving the notice required by

Tenn. R. Crim. P. 42(b).
VI. The app ellant also attacks the trial court’s order making him serve the sentences consecu tively and day-f

or-day. He relies on the Criminal Sentencing Reform Act of 1989 which requires that misdemeanants (except DUI off enders) be sentenced in accor dance with the Act. Tenn. Code Ann. § 40-35-302(d) requi res th e court to set a percen tage of the misdemeanor sentence (not to exceed seventy- five percent) which the defenda ntshall serve, and Tenn. Code Ann. § 41-2-111(b) allows a m

isdemea nant ser ving les s than one

ye ar in a lo cal jail t

o earn g ood condu ct cred its. See Stat e v. Sally J

. Lane , No. 01C01-9802-CC-00055, 1998 WL 748665 (Tenn. Crim. App. Oct. 23, 1998); State v. James KevinUnderwood , No. E2000-01945-CCA-R3-CD, 2001 WL 872436 (Tenn. Crim. App. Aug. 2, 2001). Finally , Tenn. Cod e Ann. § 40-35-103(4) requires that the sentence imposed should be the least severe measure necessa ry to achieve

the purpose for which

the sentence is imposed. Again we are confronted with the question of whether criminal contempt arisingout of a c ivil matter is enough of a crime that these criminal sentencing statutes a pply. We have applied Te nn. Code Ann. § 40-35-115(b)(7) in a prior case wher e the issue was the imposition of consecutive sentenc es. See Strzelicki v. McGrif f , No. M1999-00057-COA-R3-CV, 2000 WL 48501, at *7 (Tenn. Ct. App. Jan. 21, 2000). In Strzelecki we cited State v. Ashby , 823 S .W. 2d 166 (Tenn . 1991), the Supreme Court’s definitive statement on how the sentencing statutes operate. We have, since Storey v. Storey , 835 S.W.2d 5 93 (Tenn . Ct. App. 1 992), co nsistently held that a prosecution for

criminal contempt must proc eed acc ording t o Tenn. R. Crim. P. 42. But in Wilson v. W ilson , 984 S.W.2d 898 (Tenn 1998), the Supreme Cour t held that in addition to the prosecutors named in Rule 42(b), a contempt ch ar ge ar is in g o ut of

a c iv il ma tt er co ul d b e p ro se cu te d b y an at to rn ey represen ting the ot he r p ar ty. There is not much authority across the na tion on the question of whether criminal sentencing guidelines apply

to criminal contempt arising out of a civil matter. In Ex Parte Byram , 679 S.W.2d 762 (Tex. App. 2nd Dist. 1 984), the court held that a c

riminal pr

obation st atu te d id not

apply to a person being held in jail for a contempt of a civil injunction. The court sa id: There is simply

no author ity f or this proposition and we hold that this section of the Code of

Criminal Procedure which permits probation under certain standard ter ms, does not apply to a ca se which involves contempt for violation of a civi l injunction. There is no basis in law or in reason to support an opposit

e conclusion.3 The proble m may now be sol ved by the pa ssage of Tenn. Code Ann. § 36-3-601(2)(F), provi ding for an appeal

to the ci rcui t or chancer y court and a tria l de novo. -7- 679 S.W.2d at 766. Otherwise, when dealing with the question, the court s do so on a pi ecemeal basis as we have in Storey , Wilson , and Strzelicki

. We hold that the portions of the criminal code that require the court to set a percentage of the sentence that must be served (Tenn. Code Ann. § 40-35-302(d)) and that allows a m

isdemea nant to earn good co nduct cr

edits whil e servin g time in a local jail (Tenn. Code Ann. § 41-2-111(b)) do not apply to a defendant convicted of criminal contempt arising out of a civil matter. The possible punishmentis already so limited (a $50 fine a

nd/or ten day s in jail, Tenn. Code Ann. § 29-9-103(b)) that the legislature could hardly have intended to mandate a further reduction. There is, howev er, a pr

inciple e mbodied in

the criminal statut

es t hat we think applies whereve r punitive incarceration is considered. Tenn. Code Ann. § 40-35-103( 4) requires that the sentence be the least severe measure nec essary to achieve the purpose f or which the sente nce is imposed. In this country , where freedom is highly valued and thefundamental laws (both state and federa l) restrict the power of the governme ntto infringe on that freedom, that principle should guide courts in the imposition of any prison sentence imposed for punishment. In the criminal law th e courts exercise some control over punishment by subjec ti ng sentencing statutes and orders of confinement

to a proportionality test under the Eighth Amendment to the United States Constitution and Article

I Section 16 of the Tennessee Constitution. See State

v. Harris , 844 S.W.2d 601 (Tenn. 1992). In contempt the courts have sa id that in order

to safeg uard con stitutiona

l proced ures cou rts should emp loy

“the lea st possible

power a dequate to the end proposed.” In Re Michael , 326 U.S. 224 at 227 (1945). Because the right to a trial by jury historically

did not attach to a charge of contempt , see Ahe rn v. Ahe rn , 15 S.W.3d 73 (Tenn. 2000) and Green v. United States , 356 U.S. 165 (1958), appellate courts are charged with a special responsibility to see that the contempt power is notabused. The United States Supreme Court set out some of the factors that should be considered in reviewing a contempt sentence: [T]he trial judge may

proper ly ta

ke in to consideration the extent of the willful and deliber ate defiance of the

court ’s order, the seriousness of the consequence s of the contumacious behavior, the necessity of effe ctively terminating

the defendant’s defianceas required by

the public interest, and

the importance of deterring such acts in the future. United States v. United Mine Worke rs of America , 330 U.S. 258 at 303 (1947). Of course we do not have a record of the proceedings in the Genera l Sessions Court since those proceedings are s eldom re corded. But if g eneral sessions c ourts ar

e asked t o exercis e concurren tjurisdiction with the courts of record they should make some provision for a reco rd

– especia lly where a person’s liberty

is atstake. 3 Without a record we have our doubts that putting the defendant in jailfor a ye ar is the least severe measure that will persuade him to respect the court’s-8-

orders. The victi m’s affidav its d o not allege any violent or threa tening behavior on the part of the defenda nt. Alth ough in the absence of a record we would ordinarily presume that the lower court’s action was correct, this case presents what we hope is a unique set of facts where the def end ant thought he had a record (from the criminal court) only to be de prived of it because the law was unclear.
We revers e the sen

tence imp osed on the

defenda nt, but we do not rev erse the

finding s of guil

t agains thim. Because Te nn. Code An n. § 36-3-60 1(2)(F) now providesfor an a ppeal in t he Circui t Courtfrom a final ruling on an order of protection b y a Genera l Se ssions Cour

t, we remand this cause to the Circuit Cou

rt of Dav idson Count

y f or a new sentenc ing hea

ring. T ax the cost s on appeal to the State of Tennessee.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.