IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 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 guilty to the offense in the General Sessions Court of

Sullivan County. The General Sessions Court sentenced her to serve eleven months and twenty-nine

days, with all but thirty days suspended. Defendant filed a timely appeal to the Criminal Court of

Sullivan County. On the date that the case was set for “announcement” in criminal court, Defendant

was approximately one hour late in arriving at court. The criminal court dismissed the appeal for

“failure to prosecute” and remanded the case to the General Sessions Court of Sullivan County for

“execution of the sentence.” The Defendant filed a timely appeal to this court. After a review of

the record, and the applicable law, we reverse the judgment of the criminal court and remand for a

sentencing hearing de novo.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Reversed and Remanded for Sentencing Hearing.

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

ROBERT W. WEDEMEYER, 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 Wells, Jr., District Attorney General; and J. Lewis Combs, Assistant District Attorney

General, for the appellee, State of Tennessee.
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OPINION

I. BACKGROUND

We initially observe that the Defendant, in her appeal to the criminal court, requested a jury

trial. She had pled guilty to theft in general sessions court, and submitted 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). Tennessee Code 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 Sullivan County, her

case was set on the “trial docket” in Sullivan County Criminal Court for November 21, 2000.

However, on November 20, 2000, Defendant 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, although her attorney was present. The trial court asked the State’s prosecutor

whether he “had a motion.” The prosecutor then orally moved for issuance of a capias and for the

court to dismiss the appeal and remand the case to the General Sessions Court of Sullivan County.

Defendant had been released on a bail bond of $750.00. In response to the State’s motion, the trial

court stated:

THE COURT: Okay, if your client has an appeal case out of General

Sessions Court and 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

execution of the judgment. The trial court’s minute entry states that the case was dismissed “for

failure to prosecute the appeal,” and remanded to General Sessions Court. Further it was ordered

that the Defendant appear in the General Sessions Court on January 16, 2001 at 9:00 a.m. for

“execution of sentence.” 

The transcript of the trial court proceedings on January 12, 2001 reflects that Defendant

arrived in court, approximately one hour late, at 9:30 a.m. When the trial court became aware of this

development, it announced that 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 submitted in an evidentiary hearing. This evidentiary
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hearing was held later that 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 years

of age and relied upon her son and daughter-in-law for transportation to the court. They were

delayed by ice and snow. 

On appeal, Defendant has submitted two issues as follows:

(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 committed reversible error by denying [Defendant’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 issue, i.e.,

whether the trial court erred by dismissing the appeal and remanding the case to the General Sessions

Court. 

 

II. ANALYSIS

On appeal, the State concedes that it could find no legal authority which would authorize the

criminal or circuit court to 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 designated time. 

Tennessee Code Annotated section 27-5-108 provides for an appeal by a defendant in a

criminal 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 Annotated section 27-5-107 states as follows:

27-5-107. Affirmance. – If the papers are properly returned, and the appellant fails

to appear or defend as above, or if the appeal is dismissed for any cause, the appellee

is entitled to an affirmance of the judgment below, with costs.

In State v. Cunningham, 972 S.W.2d 16 (Tenn. Crim. App. 1998), a panel of this Court

reviewed the case of a defendant whose probation in the Municipal Court of Jackson, Tennessee,

had been revoked, and the defendant appealed this revocation to the Circuit Court of Madison

County. 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,
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In a de novo review, “the parties are 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 what took place in the 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 judgment 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 significance that it should not be dismissed merely 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 hearing, pursuant to all applicable provisions to sentencing

in misdemeanor cases under the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-4-

112; Tenn. R. Crim. P. 5(c)(1). Normally a defendant has a right to be present for 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 judice, the trial court initially ordered a conditional forfeiture of the bond and issuance of a

capias. This was later rescinded by the trial court, even though the court ordered the case

“remanded” back to the general 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 right of the State to have an appeal

from general sessions “dismissed” upon a defendant being only one hour late for court. Accordingly,

the judgment of the trial court is reversed, and this case is remanded to the Criminal Court of

Sullivan County for a sentencing hearing, and entry of a judgment of the criminal court in

accordance with the guilty plea previously entered by Defendant, and the sentencing determination

made by the trial court.

___________________________________ 

THOMAS T. WOODALL, JUDGE