# FILED
June 09, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON FEBRUARY 1997 SESSION

BARRY WELLS, ) ) APPELLANT, )

) No. 02-C-01-9610-CV-00358 ) ) Lauderdale County v. ) ) Joseph H. W alker, III, Judge ) ) (Habeas Corpus) RONNIE RICKARD, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Robert H. Hutton John Knox Walkup Attorney at Law Attorney General & Repor ter 1700 One Commerce Square 500 Charlotte Avenue Memphis, TN 38103 Nashville, TN 37243-0497 Ellen H. Pollack Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068 Mark E. Davidson Assistant District A

ttorney General 302 Market Street Somerville, TN 38068

OPINION FILED:_______________________________

_______ AFFIRMED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Barry Wells (petitioner ), appeals as of right

from a judgment of the trial court refusing to voi d hi s con viction for theft under $500 on the ground the general sessionsjudge who tried and sentenced him was a lay judicial officer. In this C ourt, t he petitioner

contends he was entitled t o have a judge licensed to practice law sit in judgment of him. After a thorough rev iew of the record, the briefs submitted by the parties, and

the law governing the iss ue presented for review, it is the opinion of this C ourt the judgment of the trial court should be affirmed. On Ju ly 17, 1995, an arrest w arrant was issued by

the clerk of the Lauderdal e County general sessions

court for

the arrest of the petitioner. The warrant alleged the offense of theft under $500, a Class A misdemean or. The affidavit of complaint alleged the pet it ioner stole a 13" televi sion on July 12, 1995 from Jul ia Claybrooks. A deputy sheriff subsequently executed the warrant and the petitioner was placed in the Lauderdale County Jail. The petitioner appeared in the general sessions court on July 24, 1995. He entered a plea of not guilty, w aived his right to counsel, and waived hi s right to trial by jury. The petition er was found guilty of theft under $500 after a trial on the mer its. H e wa s s e ntenced to pay a $100 fine and serve eleven months and twenty -nine days in the Lauderdale County

Jail at 75 percent. All but thirty day s of the petitioner's sentence w as suspended and he was placed on probation. He w as ordered to make restituti on in the sum of $250 and to pay the accrued court costs. On September 28, 1995, a capias was issu ed for t he arrest of the petitioner for a violation of his probation. The capias was not served until Augus t 25, 1996. The petitioner appeared in the general sessions cour t the next day, August 26, 1996. The petitioner was not advised of the right to c ounsel and counsel was not appointed to represent him. The petitioner

did not waive his r

ight to counsel. The general sessions judge revoked the petitioner's probation. He was ordered to serve the balance of his sentence or pay $522. The petitioner initiated this action for habeas corpus in the Circuit Court for the 25th Judicial District. The

trial court found the petitioner was denie d his right to counsel at the revocation hearin g. T his matter was remanded to the General Sessions Court o f3

Lauderdale County for a new hearin g. The general sessions court was directed to

provide counsel to the petitioner in the absence of “a clear showi ng of a waiver of the ri ght to an attorney" in writing. The trial court found that Lauderdale County has n ever had a general sessions judge who was licensed t o practice law. In 1990,Billy Wayne Williams, a ret ired sta te trooper, was elected general sessions judge. No li censed attorney qualified to run forthe office. The t rial court followed the decision of the Supreme Court of the United States in North v. Russell , 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976) when denying the petitioner

relief on this issue. The petitioner relies upon the Tennessee Supreme Court's decision in State ex rel. Anglin v. Mitchell , 596 S.W.2d 779 (Tenn . 1980), t o support his contention that he was entitled to a l awyer judge. The tr ial court also relied upon Tenn. Code Ann. § 16-15-5005. In North the United States Supreme Cour t held:
We conclude that

the Kentucky two-ti er trial court sys tem with lay judicia l office rs in the first tier in smaller cities and an ap peal of right with a de novo trial before a traditionally la w trained judge in thesecond [tier] does not vi olate either thedue process or equal protection g uarantees of the Constitution of the United States. . . .
427 U.S. at 339, 96 S.Ct. at 2714,49 L.Ed.2d at 542. This jurisdiction, like Kentucky, has
a two-tier system. An accused who submits to the jurisdiction of the general sessions court and is c onv icted of a criminal offense has the ri ght to appeal to a court of gener al jurisdiction, a crimina l court or c ircuit cou rt, exe rcising c riminal jurisdictio n. Tenn. Code Ann. §§ 27-5-108, 27-3-131 (Supp. 1996 ). Ifthe accused desires a jur y trial, he must wr

ite such fact on the face of the appe al form. Tenn. Code Ann. § 27-3-131 (Supp. 19 96). The petition er 's reliance upon State ex rel. Anglin v. Mitchell is misplaced. The Supreme Court made its holding clear. The court said:
We hold, in t he conte xt of a juvenile commitment, that "the law of the land" provision of Article I, Section 8 of the Constitution of Tennessee does n ot permit a judge who is not licensed to practice law tomake any disposition of a juvenile that operates to confi ne him or d eprive him of his lib erty.4

596 S.W.2d at 791. The appellate courts of this jur isdiction have refused to ex tend Anglin to other circumstances. In State v. Pritchett , 621 S.W.2d 127, 132 (Tenn. 1981), acapital case, the Supreme Court refused to extend Anglin to preliminary heari ngs conducted by
a non-lawyer general s essions judge. This Court reached the same result as Pritchett in State v. Voltz , 626 S.W.2d 291, 295-96 (Tenn. Crim. App.), per . app . denied (Tenn. 1981). This Court has refused to extend Anglin to transfer hearings conduc ted by a n on-la wyer juvenile court judge. State v. Davis , 637 S.W.2d 471, 474 (Tenn. Crim.App. 1982); State v. Briley , 619 S.W.2d 149, 15 2 (Tenn. Crim. App. 1981). The SupremeCourt in Anglin took great pains to distinguish the appl icatio n of North to juvenile proceedings and adult proceedings. The c ourt said:
The differences between North v. Russell and the case at bar are glaring. There the defendant w as an ad ult; here we deal with a minor. There the defendant was sentenced to30 days in jail, fine d $150.00 and stripped of his driver's license; here we are faced with confinements up to seven and eight years. There th e offen se was a mis demean or; here it was a felo ny. 596 S.W.2d at 790. This Court applied North in Voltz

. There is a stat utory mandate that general sessions judges be licensed lawyers. However, there is an exception to this mandate. Tenn. Code Ann. § 16-15-5005(b) states that effective September 1, 1990:

If no licensed attorney q ualifies for an election being held to fill the offi ce of general sessions judge , or the only attorney candidat e legally withdr aws, the county election commission shall extend the qualification deadline for a period of

ten (10) days, during which periodpersons not licensed to pra ctice law mayqualify to seek the office of gen eral sessions judge. The provisions

of the second sentence of this subsecti on shall not applyin counties having a population of not less than fifty-one tho usand twenty-five (51,0 25) nor more than fifty-one thousan d one hundred twenty-five (51,125) a ccordi ng to the 1980 federal census or any subsequent federal census.
This statute is constitutional . It does not violate the D ue Process Clause or Equal Protection Clause of the United States Cons titution or the

law of the land provision of the Tennessee Constitution. As previously st ate d, Lauderdale County has never had a licensed lawyer as a general sessionsjudge. In 1990 no licensed l awyer qualified for the office. Accordi ng to5

the statute, non-lawyer s could qualify for the office.Judge Williams qualified pursuant to the statute and was duly elected by the citiz

ens of Lauderdale County.

CONCLUSION
Judge Williams was duly elected and qualified to ser ve in the capacity of ge ne ral sessionsjudge by virtue of Tenn. Code Ann. § 16-15-5005(b). Therefore, he had the right to try the petitioner for the misdemeanor offense of theft un der $500 after the petitioner waived his right to counsel and trial by jur y. Judge Williams also had the author ity to sentenc e the pet itioner a fter fin ding him gu ilty. This Court adopts the holding i n North v. Russell . While J ud ge Williams was not licensed to prac

tice la w, the j udges of the cir cuit cour t are licen sed to pra ctice law. Furthermore, the petitioner had a right to appeal his conviction and sentence to the Circuit Court for the 25th Judicial D istrict sitting i n Lauderdale County. He w as entitled to a jury trial if he had requested it. How ever, the petitioner faile d to appeal. Therefore, he waiv ed his right of ap peal. Obviously, the petitioner was satisfied with the sentence because Judge Williamsgranted him probation for most of the sentence. He di d not become dissatisfied until Judge W illiams revoked his probation fo r failing t o conform to the conditions of the probation.

__ ____________

______________________________ _ JOE B. JONES, PRESIDING JUDGE6

CONCUR:

_______________________________________ JOHN H. P EAY, JUDGE

_______________________________________ JOE G. RILEY, JUDGE