### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001 STATE OF TENNESSEE v. BURITA A. WINEBARGER Direct Appeal from the Criminal Court for Sullivan County

No. S44,394 Phyllis H. Miller, Judge

No. E2001-00149-CCA-R3-CD November 15, 2001

The Defendant, Burita A. Winebarger, was charged in an arrest warrant with the offense of theft of property less than $500.00 in

value. She pled g

uilty to the of

fense in the General Sessions Court of Sullivan County. The G

eneral Sessions Co

urt sentenced he

r to serve eleven months and twenty-nine days,withall but thirty

days suspen

ded. Defendant

filed a timely

appeal to the Criminal Court of Sullivan County. On the date that the case was set for “announcement” in cr iminal court, Defendant was approximately

one hour late in ar

rivin g at court. The criminal court dismissed the appeal for “failure to prosecute” and remanded the case to the General Sessions Court of Sullivan Coun

ty for “execution of the s

entence.” The D

efendant filed a

timely appe

al to this court. After

a review of the record, and the applicable law, we reverse thejudgment of the criminal court and remand for a sentencing h earing de novo

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded for Sentencing Hearing.
T HOMAS T. W OODALL , J., delivered the opinion of the court, in which GARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Richard A. Spivey, Kingsport, Tennessee, for the Appellant, Burita A. Winebarger. Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; H. Greeley Well

s, Jr., District Att

orney General;

and J. Lewis Combs, Assistant District Attorney General, for the appellee, State of Tennessee.-2- OPINION I. BACKGROUND
We initially obse

rve that the Defe

ndant, in her appe

al to the criminal c

ourt, requested a jury trial. She had pled guilt y to theft in g

eneral sessions c

ourt, and submitte d sentencing for determination by the general sessions judge. She could only appeal the sentence, a

non-jury matter, and could not appeal the issue of guilt. Tenn. R. Crim. P. 5(c)(1). T ennessee Cod e Annotated section 40-4-112 permits the defendant to appeal a sentence imposed by the general sessions court following a plea of

guilty to the offense. Rule 5(c)(1) of the Tennessee Rules of Criminal Procedure mandates that the appeal of the sentence is de novo , and this necessarily requires a new sentencing hearing in the criminal court pursuant to Chapter 35 of Title 40, Tennessee Code Annotated. After Defendant appealed the sentence in General Sessions Court of S ullivan County, her case was set on the “tri

al docket” in Sulliv

an County

Criminal C ourt for November 21, 2000. However, on November 20 , 2000, D efendant appeared in court and her case was reset for “announcement”

on January 12, 2001, and was removed from the “trial docket” setting of November 21. On the morning of January 12, 2001, the trial court called Defendant’s case and Defendant was not present, altho

ugh her attorne

y was prese

nt. The trial cour

t asked the State ’s prose cutor whether he “had a motion.” The prosecutor then orally moved for issuance of a capias and for the court to dismiss the appeal andremand the case to the General Sessions Court of S ull iva n Co unt y. Defendant

had been released

on a bail bond of $75 0.00. In resp onse to the State’s motion, the trial court stated:
THE COURT: Oka y, i f your client has an appeal cas e out of General Sessions Court an d she doesn’t show up, it’s dismissed for failure to prosecute her appeal, and I’ve issued a capias issuing ---- ordering a capias and conditional forfeiture. The court subsequently stated that the Defendant’s case was remanded to sessions court for ex ecution of the judgment. T he trial court’s m

inute entry

states that the ca

se was dismiss ed “fo r failure to prosecute the appeal,” and remanded to General Sessions Co urt. Further it was ordered tha tthe Defendant appear in the General Sessions Court on January 16, 2001 at 9: 00 a.m. fo r “execution of sentence.” The transcript of the trial court proceedings on January 12, 2001 reflec ts that D efendant arrived in court, approximately one hour late, at 9:30 a

.m. When the trial co

urt became awa

re of this development,

it announcedthat notwithstanding the arrival of Defendant, the court was not sure whether or not the order remanding the case to General Sessions Court would be set aside. The trial court further advised Defendant’s counsel that if he was going to move the trial court to set aside the order of remand, proof

would have to be su

bmitted in an evide

ntia ryhearing. This evidentiary-3-

hearing was held lat er t hat day, and Defendant and her daughter-in-law testified as to the various reasons for the Defendant

being late to court. Testimony established that the Defendant was 63 y ears of age and relied upon her son an d daughter-in-law for transportation to the court. They we re delayed by ice and snow. On appeal, Defe

ndant has submitted

two issues as follow

s: (1) Whether

the trial court committed reversible error in dismissing [Defendant’s] appeal and remanding this cause to General Sessions Court for execution of judgment. (2) Whether

the trial court co

mmitted reversible

error by de

nying [Def

endant’s] motion to place her cause back on the docket after the trial court had dismissed it on the ground of failure to prosecute.
We will address both of Defendant’s submitted issues by rephrasing into one is sue, i.e., whether the trial court er

red by dismis sing the appeal and remanding t

he case to the General Sessions Court. II. ANALYSIS On appeal, the State

concedes that it c

ould find no leg

al author ity whi ch would a

uthorize the criminal o r circuit court t o dismiss an appeal in a criminal case and then remand the case to the general sessions court when a defendant does not appear in court at a desig nated time.
Tennessee Code Annotated section 27-5-108 provides foran appeal by a defendant in a crimin al case from a general sessions court judgment to the circuit or criminal court. Section (c) states that “[a]ny appeal shall be heard de novo in the circuit court.” Tenn. Code Ann. § 27-5-108 (1997 & Supp. 2000). Tennessee Code A

nnotated section 2

7-5-107 states as

follows: 27-5-107. Affirmance. –If the papers are pro

perly retu rned, and the app

ellant fails to appear or

defend as above

, or if the appeal

is dismissed for any cause, the appellee is entitled to an af

firmance of the

judgment below, w

ith costs.
In Stat e v. Cunningham , 972 S.W.2d 16 (Tenn. Crim. App. 1998), a panel of this Court reviewed the case of a

d efendant whose probation in the Municipal Court of Jackson, Tennessee, had been revoked, and the defendant appealed this revocation to the Circuit Court of Madison Cou nty. The circuit court affirmed the municipal court’s judgment, but had not conducted a de novo hearing. In reversing and

remanding the case to the circuit court for a de novo probation revocation hearing, our Court noted,-4-

In a de novo review, “the parties ar e entitled to

a reexamination of the whole matter of law and fact.” Richards v. Taylor , 926 S.W.2d 569, 570 (Tenn. App. 1996). The circuit court is not

concerned with w

hat took place in th

e lower court; the

matter is tried as if no other hearing had occurred. Hohenberg Bros. Co. v. Missouri Pac. R.R. Co. , 586 S.W.2d 117, 119 (Tenn. App. 1979).
A de novo hearing encompasses more than just the presentation of proof. The court must try the matter and render ju dgmen t as if no judgment had previously been rendered. Cunningham , 972 S.W.2d at 18 (emphasis in original). Based upon Cunningham , we conclude that an appeal by a defendant in a criminal case from general sessions court is of

such significan

ce that it should not

be dism iss ed m erel y because a defendant is one hour late for court.
In the case sub judice , the conviction upon a plea of guilty necessarily follows the appeal, and becomes a

judgment of conviction in the Criminal Court of Sullivan County, with the criminal court required to have a de novo sentencing hea ring, pursuant to

all applicable pr

ovisions t o se ntencing in misdemeanor cases under the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-4- 112; T e nn. R. Crim. P. 5(c)(1). Normally a defendant has a right to be present f or a sentencing hearing. The right to be present at a sentencing hearing can be waived

or forfeited by

a defendant. Tenn. R. Crim. P. 43(a); see State v. Carruthers , 35 S.W.3d 516, 567-68 (Tenn. 2000). In the case sub judi ce, the tri al court initially ordered a conditional forfeiture of the bond and issuance of a ca pias. This was later rescinded by the trial court, even though the cour t or dered the cas e “remanded” ba

ck to the gener

al sessions court. Based upon this record, we conclude that the Defendant has not waived or forfeited her right to a sentencing hearing. While we do not condone the Defendant’s tardiness for court, we conclude that a defendant’s right to a sentencing hearing outweighs the rig ht of the State to have an appeal from general sessions “dismissed” upon a defendant bei

ng only one

hour late for cou rt. Acco rdi ngly, the judgment

o f the trial court is reversed, and this case is remanded to the Criminal Court of Sullivan County for a sentenci ng h earing, and en

try of a judg

ment of the crimina

l court in accordance

with the guilty plea

previously entered by

Defendant, and the sentencing determination made by the t

rial court.

___________________________________ THOMAS T. WOODALL, JUDGE