FILED

October 18, 1996

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9511-CC-00352

)

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
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OPINION

Appellant John Wayne Slate appeals the judgm ent 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 threeyear sentence for attem pted jail escape. On direct appeal, this Court affirmed the

judgment of the trial court. See State v. Slate, No. 101, 1989 WL 130712, at *4

(Tenn. Crim. App. Nov. 1, 1989). Appellant then filed a petition for postconviction relief. This Court again affirmed the judgm ent of the trial court with

regard to the firearm enhancement and the attempted jail escape conviction but

reversed the judgm ent of the trial court with regard to the first degree murder

conviction. The Court held that the evidence only established second degree
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murder and remanded the case to the trial court for imposition of an appropriate

sentence and a judgment of conviction. See Slate v. State, No. 03C01-9201-CR00014, 1994 W L 149170, at *8 (Tenn. Crim. App. Apr. 27, 1994), perm. app.

denied, (Tenn. Oct. 24, 1994). Upon remand, the trial court gave Appellant the

opportunity 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

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 . . . .
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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 m urder.

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.

We 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 WL

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. We 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. 

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
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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 comm itted 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. We 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.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE