# FILED
January 27, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER 1998 SESSIO N
STATE OF TENNESSEE, ) ) Appellee, ) No. 01C01-9801-CC-00003

) ) Rutherford County v. ) ) Honorable J. S. Daniel, J udge ) THOMAS CUNNINGHAM, ) (Sentencing) ) Appellant. ) For the Appellant : For the Appellee : Lionel R. Barrett, Jr. John Knox Walkup Washington Square Two Attorney General of Tennessee Suite 418 and 222 Second Ave., N. Lisa A. Naylor Nashville, TN 37201 Assistant Attorney Gener al of Tennessee (ON APPEAL) 425 Fifth Avenue North Nashville, TN 37243-0493 John B. Melton, III 120 E. Main St., Third Floor William C. W hitesell, Jr. Murfreesboro, TN 37133 District Attorney General (AT TRIAL) and Paul Holcombe Assistant District A

ttorney General Rutherford Co unty Judicial Bldg. Murfreesboro, TN 37130

OPINION FILED:____________________ AFFIRMED IN PART, FORFEITURE VACATED, REMANDED FOR FUR THER PROCEEDINGS Joseph M. Tipton Judge2 O P I N I O N
The defendant, Thomas Cunningham, was conv icted by a jury i n the Rutherford County Circuit Court of illegal pos session of commercial fishing gear and illegal possession of g ame fish, both Class B misdemeanors . The trial court sentenced the defendant to six months in the w orkhouse at seventy-fiv e percent for each offense, to be served consecutiv ely, suspended after seven days’ confinement. Also, the defendant was fined a total of seven hundre d fifty dollars, had his fishing license suspended for one year, and was prohibited from entering or going near Percy Priest Lake, the site of the offenses, for one year . Finally, the tri al court ordered the defendant’s boat, motor, and gill net forfeited. In this appeal as of ri ght, the defendant challenges the imposition of seven days’ confinement and the forfeiture. We affirm the sentences, but we vacate the forfeiture and remand the case to the trial court.
At the sentencing hearing , the defendant admitted to December 1994 convictions for illeg al possession of game fish, ill egal possession of commercial fishing gear, and illegal use

of commercial fishing gear. These offenses were also committed on Percy Priest Lake. He received full probati on for these convictions and was allowed to retain his boat, motor, and t railer. He was al so permitted to retain his fis hing license. The offenses in the present case wer e committed in February 1997. The defendant explained that his cri minal actions were neces sary to provide for hi s seriously ill wife.
In imposing sentence, the trial court found as follows: Okay

. T his was an

unusual cas

e that presented some compelling issues. Number one, [the defendant], basically, is totally wrong. He has violated the law callously, and he uses to some extent his wife's condition to justify that. And I'm very sympathetic with his wife, and I can understand her co nce rn and their concern for her healt h. But in the face of having been convicte d a short peri od of time before, he's back at it again not only commer cial fishing in an area not allowed but wit h illegal equi pme nt after having3 previouslyhad a sim ilar conviction. So , with that type of cal lous disregard to the law , the sentence imposed in ea c h count is 6 months, 75 percent. They run co nsecutive to each other. There has to be serious pe nalties imposed ag ainst those who violate th e law. The trial court was obv iously concerned that the defendant had not learned his lesson from his previous sentence of full probation.
In this appeal, our review is de novo with a presumption that the trial court’s findings are cor rect. See T.C.A. § 40-35-401(d). As t he Sentencing Commission Comments to this sec tion note, the burden is now on the defendant, as the appellant, to show that he w as improperly sentenced.
Although the defendant was eligible for full probation, th e trial court also had the authority to order a portion of the sentence to be serv ed in confinement. See T.C.A. § 40-35-302(e). In this respect, confinemen t is appropriate when it is necessary to avoid depreciating the seriousness of the offense and when l ess restrictive meas ures have recently been appli ed unsuccessfully. See T.C.A. § 40-35-103(1)(B)- (C).

In the present case, the defendant essen tially wants the same sentence he received the last ti me he committed the same offenses. Although an important sentencing principle i s to encourage effective rehabi litation, see T.C.A. § 40-35- 102(3)(c), the grant of full probation the last time obviously did not succeed in rehabilitating the defendant. To t he contrary, his conduct indicates that he thought that he could continue to violate the law without consequence. The trial court correctly determined that the defendant n eeded a sterner punishment this time in order to learn his lesson.

The defendant next contends that there i s no statutory authority for the forfeiture of his boat, motor, and gi ll net and that even if there i s, this is too severe a4

punishment. The record reveal s that the trial court or dered the defendant's gill net, boat, and outboard motor declared c ontraband pursuant to T.C.A. § 70-6-201. As contraband, the

items w ere orde red deli

vered t o the Di rector

of the Ten nessee Wild life Resources Agency for s ale.

Pursuant to 70-6-201, items use d to violate wildl ife resources commission laws or regulati ons are subject to seiz ure and forfeiture. “Upon conv iction, the court or jury trying t he case shall . . . determine whether or not the thing s seized shall be declared contraband.” T.C.A. § 70-6-201(c)(1). Upon being declared contraband, t he property is deliv

ered to the executive di rector of the agency for adv ertisement and sale. See T.C.A. § 70-6-201(c)(2). In other words, there is ample statutory authority for a forfeiture of the defendant’s equipment.

Also, we disagree w

ith the defendant’s contention that the forfeiture was too severe. As previ ously indicated, one goa l of the defendant’s punishment was t o insure that he did not repeat th ese crimes again. The forfeiture was appropriate to remedy any concerns about future problems.
However, the forfeiture mus t be initiated upon the decisi on of whoever tried the defendant: in this case, the j ury. The record on appeal i ndicates that the trial court declared the items contraband and ordered the ir sale. If the jury did not declare the fishing equipment to be cont raband, then the trial court was without authority to do so during sentencing. However, the recor d does not contain a transcri pt of the defendant’s trial. Thus, we d o not know if the jury took the initial action that was then repeated by the trial court in its order. Under such a circumstance, the forfeitu re would be affirmed.5 Therefore, the forfeiture order is v acated and the case is remanded to t he trial court for a determination of whether the jury declared the def endant’s boat, motor, and gill net contraband and for further proceedings as needed. The judgment of the trial court is in al l other respects affirmed.

__________________________ Joseph M. Tipton, Judge
CONCUR:
(Not participating) Paul G. Summers, Judge

____________________ Joe G. Riley, Judge