# FILED
March 2, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9803-CR-00125

Appellee, * DAVIDSON COUNTY VS. * Hon. Frank G. Clem ent, Jr., Judge WILLIA M M. NEELY, * (DUI Fourth Offense)

Appellant. * For Appellant : For Appellee : Sam Wallace, Sr. John Knox Walkup 227 Second Avenue, North Attorney General & Repor ter Second Floor Nashville, TN 37201 Timothy Behan Assistant Attorney Gener al Criminal Justice Div

ision 2d Floor, Cordell Hul l Building 425 Fifth Avenue North Nashville, TN 37243-0493 George Bonds Assistant District A

ttorney General 222 Second Avenue, North Nashville, TN 37201

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, William M. Neely, was conv icted of DUI, fourth offense. The trial court imposed an el even month, twenty-ni ne day sentence to be served at o ne hundr ed perce nt. He pre sents two ge neral issu es for ou r review:

(I) whether the state proved his prior DU I convictions sufficiently to support the enhan ced sentence; and (II) whether the trial court erred by failing to dismiss the charg es on the grounds o f unreas onable d elay.
We affirm the judgment of the trial court.
(I) The defendant's first complaint is that th e state did not adequately prove his prior DU I convictions. Therefore, he reasons, he cannot receiv e an enhanced sentence as a repeat offender.

A transcript of the guilt

phase of the trial is not part of the record. In the second phase, the state present ed the testimony of Kevin Sander s, the deputy court clerk, who tes

tified that three court files c ontained records indicatin g that a William Michael Neely, date of birth March 17, 1948, had three pri or DUI convictions entered on March 29, 1990. Sander s testified that the files establ ished that one of the offenses occurred on May 8, 1988, one on August 2 9, 1989, and one on March 4, 1989. In those proceedings,the defendant was declared a si x-time DUI offender.
Our DUI statute, of course, pr ovides for enhanced penalties for repeat offenders. The law in effect when the d efendant committed the offense, on June 10, 1996, provided that a person who commits a third or subsequent DUI is subject3 to a "fine of not less than one thousand doll ars ($1,000) nor more than fiv e thousand dollars ($ 5,000) [ and conf inement ] for not less than one hund red twenty ( 120) days nor more than eleven (11) months and twenty-nine ( 29) days ...." Tenn. Code Ann. § 55-10-403(a)(1) (amended in 1998 to make DUI fourth offense a Class E felony).

When the defendant is charged as a repeat DUI offender, the required procedure is as follows :

[A] bifurcated proceeding is mandated. The f irst phase of the proceeding addresses the issue of th e guilt or innocence of the defendant. ... If the jury returns a verdict of guilty, the jury, not the trial judge, must determine whether the defendant is a second or subsequent offender beyond a reasonabl e doubt. State v. Sanders , 735 S.W.2d 856, 858 (Tenn. Crim. App. 1987). A findin g that the defendant is a subsequent offender quali fies the offender for enhanced punishment but does not constitute "a new offense." Tenn. Code Ann. § 55-10-403(a)( 2). See also State v. Ward , 810 S.W.2d 158, 159 (Tenn. Crim. App. 1991). In Ward , this court observed that the increased punishment provisions of our DUI statut e are "analogous to the habitual criminal statutes which our courts have consistently held do not create a new offense but only provide for an enhanced punishment ." Id.
The defendant contends that the proof was i nadequate because the state should have produced the court's minutes reflecting entry of the prior convictions, rather than relying on the testimony of the court clerk. He cites Reed v. State , 581 S.W.2d 145 (Te nn. Crim. App. 1978), a case in which this court determined that the deputy cler k's testimony was i nsufficient to establish prior convictions.

In Reed , the defendant was convicte d of shoplifting. At the second phase of the trial, the state attempte d to show the defendant had three pr ior4 convictions, thus establ ishing a status of repeat offender. 581 S.W.2d at 146. The deputy clerk testified to information contained in the "court's 'yellow jackets' concerning these prior cases." Id. at 147. Copies of the entries made on the jackets of the files were al so entered into evidence. Id. A panel of this court ruled that the exhibits wer

e "woefully inadequate for the purposes intended." Id. As to the first conviction, the

file jacket indicated a jur y verdict of guilty; but there was nothing on the jacket to indi cate the trial judge appr oved the verdict or entered judgment. The document also did not indicate when the convi ction had occurred. On the second conviction, the jacket did show the tr ial judge had entered judg ment; however, the date of conv iction did not match the date char ged in the indictment. Due to the variances, the trial judge refused to submit this prior convic tion for consideration by the jur y. See Tenn. Code Ann. § 55-10-403(g) (2)(the indictment charging the defendant as a re peat offender must allege the date of the pri or conviction). For the third conviction, th e jacket contained an entry imposing sentence after the defendant 's guilty plea. This court concluded that "this entry cannot be afforded the dignity of a fina l judgment" and determined that the entry was inadequate because it did not contain the date of disposition. Id.

In conclusion, this court ruled as follows: We find that the proof in this case is totally lacking to establish the prior conv ictions as alleged in the indictment. For some reason no t apparent in the record, the State did not offer to prove thes e alleged prior convictions by int roducing the minutes of the cour t. Rather, the State embarked on a pr otracted and confusing course seeking to establish its case by having a deputy clerk of the court to testify from information contained on or in the court's "yellow jackets " concerning these prior cases.

*** ... The defendant, among other things , is entitled to be apprised of the accurate dates of the prior convictions whic

h the state intends to rely on for5 enhanced punishment purposes. Also, the stat e is obliged to prove that there was a final conviction for each of these prior offenses. These things were not done in this case. Id. at 147, 148.

In our view, the rul ing in Reed does not apply to these cir cumstances. The state may establish the prior convictions so long as the proof off ered is admissible under our Rules of Evidence. The Reed decision does not requir e that the minutes of the convicting court are the only acce ptable manner for establishing the prior offenses. In State v. Woodall , where the defendant was adj udicated an habitual offender, the supreme court hel d that several avenues were open to the state when proving prior convictions. 729 S.W.2d 91, 93 (Tenn. 1987). Certified copies of official records of convictions could be used as well as "official minutes, testimony of police officials or court personnel." Id. In State v. Rea , 865 S.W.2d 923, 924 (Tenn. Crim. App. 1992), this court ruled the state could utilize Tenn. R. Evid. 803(8), the hearsay exception governing admissibility of public records, as a means of proving prior c onvictions.
In this case, the deputy clerk testified without objection from the cou rt files that the defendant had been previ ously convicted of DU I on three occasions. He also testified as to when the offenses occurred and when the convictions were entered. In our view , this testimony is suffici ent to establish the prior convictions.
(II) The defendant also complains the trial court erred by overruling his motion to dismiss on the grounds of unreasonable d elay. The defendant filed his motion to dismiss on September 8, 1 997. However, there is no indication that the trial court ever r

uled on the motion. The defendant has neither produced an order6 denying the motion nor pr ovided a transcript of any hearing in which the issue might have been adjudicated in the tr ial court. "We [must] decide cases ... on th e basis of the record as presented to us for our consideration." Dearborne v. State , 575 S.W.2d 259, 264 (Tenn. 1978). The burden is alway s upon the appellant to develop a record which conveys a fair, accurate , and complete account of th ose proceedin gs which form the basis of the appeal

. Id. Because the defendant has failed to establish a record upon w hich the question can be cons idered, the ground has been waived.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ John H. Peay, Jud ge

_________________________________ Jerry L. Smith, Judge