# FILED

May 6, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk 

## IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 03C01-9703-CR-00105 Appellee ) ) MONROE COUNTY vs. ) ) Hon. R. Steven Bebb , Judge GARY LEWIS THOMPSON, ) ) (DUI, Third Offense; Appellant ) Forfeiture of Vehicle )

For the Appellant : For the Appellee : J. Reed Dixon John Knox Walkup Dixon & Stutts Attorney General and Repor ter P. O. Box 111 Sweetwater, TN 37874 Sandy Copous Patrick Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493
Jerry N. Estes District Attorney General Richard Newman Asst. District Attor

ney General P. O. Box 647 Athens, TN 37303

OPINION FILED:
AFFIRMED IN PART; REVERSED IN PART
David G. Hay

es Judge

## 2 OPINION

The appellant, Gary Lewi s Thompson, was indicted by a Monroe County Grand Jury for the offense of vehicular homicide, driving under the inf luence, third offense, and driving on a rev oked license. On July 22, 1996, the appellant pled guilty to DUI, thi rd offense, with the sentence to be determined by the trial c ourt. Prior to the guilty

plea hearing, the State mov ed to nolle pros

the vehicular homicide charge, which w

as granted. Additionally, the trial court, upon appel lant’s motion, dismissed the charge of dri ving on a revoked l icense. Immediately follow ing entry of the guilty plea, the St

ate, for the first time, reques ted seizure and forfeiture of the appellant’s John Deere tractor, which he was operating at the time the DUI offen se occurred. Following a sentencing hearing on September 6, 1996, the trial court imposed a sentence of eleven months tw enty-nine days in the county jail and assessed a fine of $7,500 for the DUI, third of fense conviction. The appellant’s release percentage was fixed at 75%. The trial court also ordered that the fa rm tractor be “confiscated” from the appellant’s possession and forfeited to the State. On November 8, 1996, the written order to seize and forfeit the tractor was entered. The appellant appeals from the trial court’s judgment pursuant to Tenn. R. Crim. P. 37(b)(2)(ii), raising the following two issues: I. Whether the period of confinement in the jail is excessive; and II. Whether § 55-10-403(k)(1) properly authorizes fo rfeiture of his tractor.
After a review and analysis of the appropriate law, we affirm the sentence and fine imposed by the trial court. However, for reasons stated herein, w e vacate the trial court’s order

of forfeiture and remand to the trial c ourt for further proceedings consistent w ith this opinion.1 It is unclear fr om the record the nat ure of the owner ship of th e farm tractor.Although t he ownership i s not at i ssue, the appel lant testifi ed that he and his three brot hers jointly manage an incorporat

ed 469 acre farm d/b/ a Thompson Farm, Inc.

2 Tes timo ny of th e Sta te’s a ccid ent re con struc tion e xpe rt esta blishe d tha t the vic tim’s vehicle was travel ing between 63 an d 83 miles per hour in a 30 mile p er hour speed zone.

3 The loc ation of the collision was lighted by stree tlights and w as situate d within the c ity limits of Sweetwater. No skid marks were visi ble. 

## 3 Background

The facts leading to the appellant’s conviction are essentially undisputed. On August 11, 1995, at approximately 11:00 p.m., the appe llant, a local farmer whose license had previously

been revoked, drove a J ohn Deere tractor south on H ighway 11 in Monroe County to Al len’s convenience store to purchase something to eat. 1 

## However, when he arrived at the store, the deli was closed; so he proceeded to the Raceway convenienc

e store further down the hig hway. When he arrived at Raceway, he purchased a six pack of beer and also r epaid a $5.00 debt incurred earlier that week.

After making his purchase, the appellant returned to his t ractor and proceeded north on Highw ay 11. The appellant was t raveling in the ri ght hand lane at a speed between 18 and 22 miles per hour. Fletus V. Carruth, an of f-duty police officer, was also trav

eling north on Highw

ay 11. 2 

## Carruth’s vehicl e struck the rear of the appellant’s tractor, r esulting in Carruth’ s death. 3 

## Although the appellant refused a blood alcohol test, law enforcement officers at the scene observ ed that the appellant was unsteady o n his feet, had slurred speech, and smelled strongly o f alcohol. Additionally , field sobriety tests w ere administered to the appellant. The appellant failed the Horiz ontal Gaze Nystagmus Test and the Walk and Turn Test. The appellant admitted that he had “spl it a twelve pack” with a farm employee earl ier that day.

## 4 The appellant’s severely damaged tractor was i mpounded by the State as evidence. However, the tractor was returned to the appellant’s farm shortly thereafter and prior to any further proceedings in this case. The ap pellant, at his own expense, made extensive repairs to the damaged tractor.

On September 16, 1996, the trial court sentenced the appellant to 11 months, 29 days at 75% and imposed a fine of $7500 for the driving under the

influence, third offense, conviction. On November 8, 1996, the trial court ordered that the appellant’s John Deere trac tor be forfeited pursuant to Tenn. Code Ann . § 55-10- 403(k)(1).

I. Length of A ppellant’s Sentence

The app ellant f irst cont ends tha t the tria l court im posed an excessive sentence for his conviction. Specifically, the appellant argues that the trial court improperly applied non-s tatutory enhancement factors and i ncorrectly applied statutory enhancement factors tha t were either unsupported by the evidence or elements of the offense.

When an appellant complains of his sentence on appeal, this court conducts

a de novo

review coupled w

ith a presumption that the tri al court’s sentencing determinations are correct. Tenn. Code Ann. § 40-35-40 1(d) (1990). However, this presumption is conditioned upon an aff irmative showing that the trial court considered the relevant s entencing principles and all pertinent facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Regardless o f whether the presumption of cor rectness is applied, the bur den of showing the impropriety of the sentence i s on the appealing party.Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401.

## 5 Misdemeanor sentencing is governed by Tenn. Code Ann. § 40-35-302 (1995 Supp.). Although other wise entitled to the same c onsiderations under the Sentencing Reform Act of 1989, unlik e a felon, a misdemeanant is not entitl ed to the presumption of a minimum sentence. See State v. Seaton , 914 S.W.2d 129, 133 (Tenn. Crim. App. 1995) (citation omitted); State v. Warren , No. 01C01-9605-CC00218 (Tenn. Crim. App. at Nashville, May 21, 1997) (citation omitted). Moreover, as a sentencing hearing is not mandatory, see Tenn. Code Ann. § 40-35-302 (1995 Supp.), trial courts ar

e not required to expl icitly place their findings on the record, although such practice i s beneficial for appellate rev iew. See State v. McKnight , No. 01C01-9509-CC-00313 (Tenn.Crim. App. at Nashvil le, June 11, 1996), perm. to appeal denied , (Tenn. Jan. 6, 1997); see also State v. Troutman , No. 03C01-9509- CC-00287 (Tenn. Crim. App. at Knoxville, Nov. 6, 1996), perm. to appeal granted , (Tenn. May 5, 199 7) (Hayes, J., dissen ting). Additiona lly, while we acknowledge that the purpose of requiring the trial court to consi der enhancement and mitigating factors in felony sentencing is to assure the determinati on of an appropriate sentence within the appli cable sentencing range, we recognize that,a misdemeanor sentence, as opposed to a felony s entence, contains no sentence range. See Troutman , No. 03C01-950 9-CC-00287 (Hayes , J., dissenting). Thus, although strict compliance with formal procedures is vital in felony sentencing in part to avoid disparity in the sentencing of defendants, such rigid compliance is not n ecessary in misdemeanor sentencing wher e the relative narrow

sentencing periods encompassed by class A, B, and C misdemeanors eliminates per se the potential for disparity. Id . Accordingly, i n misdemeanor cases, the trial judge, who is able to observe first-ha nd the demea nor and respon ses of the def endant while tes tifying, must be granted discretion in arriving at the appropriate sentence.

Even in light of the cour t’s discretion and the les s stringent procedures permitted in misdemeanor sentenci ng, a misdemeanant must be sentenced to a determinant sentence, including a percentage of that sentence w hich the offender

## 6

must serve before becoming el igible for consideration of rehabilitative prog rams. Tenn. Code Ann. 40-35-302(b), (d) ; see also State v. Palmer , 902 S.W.2d 391, 394 (Tenn. 1995). In determining the percentage of the sentence, the co urt may consider enhancement and mitigating factors as well as the legislative purposes and principles related to se ntencing. Tenn. Code Ann. § 40-35- 302(d); Palmer , 902 S.W.2d at 393-94; State v. Gilboy , 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993). However, the statutor

y enhancement and mitigating factors do not have to be the only factors considered by the trial court in deter

mining the appropriate senten ce. Indeed, consideration of the statutory enhance ment factors may very well be futile in the area of misdemeanor sentencing s ince the very terms of certain enhancement factors limit their appli cation solely to felony offenses. See, e.g. , Tenn. Code Ann. § 40-35-114(11), -114(12), -114(13), -114(14) (1995 Supp.). Accordingly, the court should examine the misdemeanor offense i n the light and character of the circumstances of the offense as wel l as under the mandated sentencing principles. State v. Brannon , No. 03C01-9508-CR-00233 ( Tenn. Crim. App. at Knoxvi lle, Apr. 3, 1996), perm. to appeal denied , (Tenn. Nov. 4, 1 996) (citing Gilboy , 857 S.W.2d at 889).

In addition to these guideli nes for misdemeanor sentencing, a sentence in a DUI case must meet certain r estrictions provided

in the DUI statutes. See Palmer , 902 S.W.2d at 394; see also Seaton , 914 S.W.2d at 132. Specifically, Tenn. Code Ann. § 55-10-403(a)(1) (1995 Supp.) provides that the sentence f or a third time DUI offender is confinement “in the county jail or workhouse for

not less than one hundred and twenty days nor more than eleven months and twenty-nine days.” Moreover, a DUI offender, unl ike other misdemeanor offenders, can be s entenced to serve the entire senten ce imposed, or 100%. Palmer , 902 S.W.2d at 393-94. Compare Tenn. Code Ann. 40-35-302(d) (maximum percentage is 75%). Th us, in effect, the statute mandate s a maximum sentence for a DUI conviction “with the only function of the trial court being to determine what period abo ve the minimum period4 All person s convicted un der Tenn. Code Ann. § 55- 10-403(a) wi ll be pl aced on probati on for the difference between the ti me actually served and the maximum sentence. Tenn. Code Ann. § 55-10-403(c) (1995 S upp.).

5 W e not e tha t, in m isde me ano r sen tenc ing, u nlike felon y sent enc ing, a pres ente nce report is op tional, and n ot ma ndatory. See Sentencing Commission Comments, Tenn. Code Ann. § 40-35-302; Ten n. Code Ann. § 40-35-2 05(a) (1990).

6 The appellant

argues that the tri al court e rroneously considered t he death of Fl etus Car ruth a s an e nha nce me nt fac tor. T he re cord fails to supp ort the appe llant’s cont entio n. Th is claim is w ithout m erit. 

## 7 of incarceration established by statute, if any, is t o be suspended.” 4 

## State v. Combs , 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996), perm. to appeal denied , (Tenn. 1997); State v. Brice , No. 03C01-9605-CC-00189 ( Tenn. Crim. App. at Knoxville, Dec. 3, 1996). In determining the percentage of the sentence, th e court must con sider enh ancemen t and mit igating fa ctors as wel l as the le gislative purposes and principles r elated to sentencing. Warren , No. 01C01-0605-CC-00218 (citing Tenn. Code Ann. § 40- 35-302(d); Palmer , 902 S.W.2d at 393-94; Gilboy , 857 S.W.2d at 888-89).

The State presented no proof at the sentenci ng hearing. The appellant offered no substantive proof other than his employment on his family ’s farm. Apparently, a presentence report was not completed in the instant case as there is no reference to such a report during the sentencing hearing and a present ence report is not included in the record on appeal. 5 

## The trial court, in its findings, initially observed that it woul d be improper to consider the death of Fletus Carruth as an enhancement factor. 6 

## In pronouncing sentence, the court concluded: [The appellant] has been convic ted three times in the nineties for driving under the influence of an intoxicant. . . .[ H]e has a prior conviction for driving on a revoked license. Obviously this person is one who feels like the law does not ap ply to him. He has en ough experience evidently

that he refused the blood alcohol te st in this case. Those are all things that this Court believes could be considered in deciding the proper punish ment in this case.
The court then imposed a sentence of 11 months , 29 days at 75% and a $7500 fine.

## 8 The appellant presumes, based upon th e trial court’s recitation of findings, that the trial court appli ed the following enhancement factor s, i.e. : (1) that the appellant has been convicted three times of dri ving under the influence; (2) that the appellant has a pr ior conviction for dri

ving on a revoked license; (3) that the appellant is o f the opinion that he is above the law (4) that the appellant is s o experienced with D UI procedure that he refused the blood alcohol test.
Despite the appellant’s arg ument, we cannot conclude that the trial court intended the recited findings to be appl ied as enhancement factors rather than circumstances of the offense. Thus, we cannot f ind that the trial court erred by considering these circumstances.

We agree with the trial court that the very nature of the appel lant’s recurring criminal behavior, w

hich although not the prox imate cause, did contribute by virtue of the appellant’s presence upon the public highway, to loss of life. At the time of this off ense, th e appella nt’s drivin g privileges were revoke d. Under t hese fa cts, we cannot disagree with the trial court’s statement that “this person is one who feels like the law does not apply t o him.” In sum, we find these facts are appropriate for determi ning the a ppropria te percen tage of in carcerat ion. Again , within th e context of DUI sentencing, the ques tion is not the length of the se ntence, but rather the appropriate period of suspension above the minimum period of requi red incarceration. The statutorily imposed sentence for a DUI conviction is 364 days; the trial court imp osed an in carcerat ion perio d of 270 days. For th ese reaso ns, we are unable to conclude that the appel lant has met his burden of showi ng that the sentence imposed by the trial court is excessi ve. Upon de novo

review, we affirm the period of incarceration or dered by the trial cour

t.7 In thi s regard, we wi sh to emphasize th at thi s decision may be bo th a case of fi rst and last imp ression as the ch allenged statutory forf eiture prov ision has since be en am ended

. Accordingly, the opi nion of t his court i n the present case addresses only the challenged forfeiture provision effective a t the time of the offe nse. See Tenn . Code A nn. § 55- 10-403 (k) (199 5 Supp ). We acknowledge that the provision chall enged in thi s appeal has si nce been entir ely rewritten by our legi slature, presumably to r ectify the plet hora of potent ial const itutional chall enges arisi ng from the plain lang uage o f the form er forfeiture provision a t issue in this a ppeal. See Tenn. Code Ann. § 55-10-403( k) (1996 Supp.) (effecti ve date January 1, 1997). Although t he revised provision appears to render any future constitutional challenges to the statute moot, this court makes no effort to const rue or int erpret t he amended provisions n or does thi s court make any attem pt to form ulate any op inion relating to the oper ation and validity of the am ended statute. 

## 9 II. Forfeiture of John Deere Tractor

Next, the appellant arg ues that the trial court er red by ordering the confiscation of the John Deere trac tor under the applicable 1995 pr ovisions of Tenn. Code Ann. § 55-10-403(k). In support of this contention, the appe llant avers that: (1) Section 55-10-403(k) (1995 Supp.) is only appl icable to “titled” v ehicles, thereby excluding his John Deere tractor; (2) he w as not given notice, pur suant to Tenn. Code Ann. § 55-10-403(g), a t the time of his prior conv ictions of the possibility of forfeiture upon subsequent DUI c onvictions; (3) the St

ate acted in bad faith regarding the forfeiture; an d (4) the appellant is entitled to reimbursement for costs of repair to the tractor subs equent to the accident.

The challenged provisi on at issue in the present cas e reads in pertinent part: The judge hearing a third or subsequent violati on of § 55-10-401, or the thir d or subs

equent v iolati on of any

combina

tion of v iolati ons of § 55-10-401 and driving while intoxicated violations committed in other states, shall declare the vehicle used in the commission of such offense to be contraband and subject to forfeitur e as provided in th is subsection. Tenn. Code Ann. § 55-10-403(k)(1) (emphasis added ).

We note that this is a case of first impressi on. We have been unable to locate an y appellat e decisio n which con strues th e term “veh icle” withi n the con text of the DUI forfeiture statute. 7

## 10 A. Forfeitu re Limited to Titled Vehicles Judicial construction of a forfeiture statute is app ropriate where reasonable minds could differ with respect to the interpretation to be given the statute. 37 C.J.S. Forfeitures § 6(b) (1997). The appellant asks this court to construe the term “vehicle,” as used i n subdivision (k)( 1) of the applicable 1995 prov ision, infra Appendix I, consistent with the remaining provisions of section 55-10-403(k) which refer solely to “titl ed” vehicles. After a thor ough analysis of the chall enged provision and the applicable rules of statutory construction, we agree that the fo rfeiture provision contained in the 1995 version of Tenn. Code Ann. § 55-10-403(k) is restricted to the forfeiture of thos e vehicles which c

an or must be titled in the Stat e of Tennessee.

It is well-established in the United States, inc luding the State of Tennessee, that “[f]orfeitures are not favored by the law.” Redd v. Tennessee Dept. of Safety , 895 S.W.2d 332, 335 (Tenn. 1995); Hays v. Montague , 860 S.W.2d 403, 406 (Tenn. App.), perm. to appeal denied , (Tenn. 1993). Additionally, the public policy of this state, as expressed in the state constitution, oppos es forfeitures for convictions of crimes unl ess specifically prov ided. Id . at 408 (citing Whis nant v. Byrd , 525 S.W.2d 152 (Tenn. 1975); Fields v. Met. Life Ins.Co. , 147 Tenn. 464, 249 S.W. 798 (1923)). When a statute does provide for a forfeiture, the statute must be strictly construed. Redd , 895 S.W.2d at 335; Hays v. Montague , 860 S.W.2d at 406 (citing Williams v. City of Knoxville , 220 Tenn. 257, 416 S.W .2d 758 (1967); Biggs v. State , 207 Tenn. 603, 341 S.W.2d 737 (1960)).

For a statute to be construed as producing a forf eiture, the sta tute’s language must clearly show an intent to do so. See 37 C.J.S. Forfeitures § 8(b). The general rule is that “since forfeitur es are not favored . . . they will not be giv

en effect to, except by the express term s of a statute , and where the facts whi ch purport to require such action come clearly and plainly within the provisions of the law .”

## 11

Commonwealth v. Crosby, 568 A.2d 233, 237 (Pa. Super. 1990) (quoting 37 C.J.S. Forfeitures , § 5(a) (emphasis added)).Thus, a statue may not and cannot be construed to forfeit one’s property, unless from the very terms of the statute itself, it is manifest that the legislature so intended; and statu tes shall not be held to forfeit property except for the fault of the owner or his agents unless such a construction is unavoidable. See generally United States v. Harris , 177 U.S. 305, 309, 20 S.Ct. 609, 611 (1900); 36 A M


## . J UR


## . 2 D 

## Forfeitures and Penalties §8. In other words, the construing court may not interpret a statute imposi ng a forfeiture or penalty t o include within its s

cope any act, person, or pr operty not plainly or

fairly intended to be included. Id

.

In construing the meaning of “vehicle” in Tenn. Code A nn. § 55-10-403(k)(1) (1995 Supp.), the court must r ead the challenged term in the context of the statute in its entirety in or

der to give consist

ent and reasonable interpretati on to the term. See Cohen v. Cohen , 937 S.W.2d 823, 827 (Tenn. 1996). The subparts to subdivision (k), ex

pressly provide for

the mandatory procedure to be utilized when pursuing a forfeiture under thi s section, infraAppendix I, including classification of interest holde rs in a vehicle, noti ce requirements and bond require ments pendin g a forfeiture proceeding. Tenn. Code Ann. §§ 55-10-403(k)(1) (A)-(E); 55-10-403(k)(2); 55-10-403(k)(7)(A)(i)-(iii) (1995 Supp.). These provisions ensure notice to all owners and possessors of “ titled” vehicles, pr

ovide for an opportunity t o respond, and set forth the burden of proof of each party at the hearing. See infraAppendix I. It is clear from the language of these subparts that only “titled” vehicles are encompassed within the mandated forfeiture procedures.

There is no procedure in the 1995 statute for the forfeiture of “untitled” vehicles. Specificall

y, the challenged prov

ision does not afford notice to the8 Altho ugh not ra ised by eithe r part y and n ot at is sue in the p rese nt ap pea l, we fin d it necessary for

a complete understa nding of our analysi s to address th e due process concerns corollary to the interpretation of the ch allenged provision.

Procedural due pr

ocess under the Fi fth and Fourteenth Amendments of the UnitedStates Constitut ion and Arti cle I, Section 8 of the Tennessee Constitution proh ibit s the forfei

ture of private pro perty withou t notice of fo rfeiture rea sonab ly calculated, u nder all the c ircum stance s, to apprise interested parties of th e pend ency of the action an d to afford them an oppo rtunity to presen t their objec tions. See United S tates v. Ja mes Daniel G ood R eal Prop erty , 510 U.S. 43, 48,114 S.Ct. 492 , 498 (19 93) (citation s om itted); Redd , 895 S.W .2d at 334-335 (citations omitted); see also Matthews v. El dridge , 424 U.S . 319, 96 S .Ct. 893 (1 976); 37 C.J.S. Forfeit ures§ 20. Subjec t to few judic ially carved ex ceptions , see, e.g. , Calero-Toledo v . Pearson Yacht Leasing Co

. , 416 U.S. 663, 94 S. Ct. 2080 (1974) , it is essenti al that before a forf

eiture is imposed that t he reco rd rev eal all in teres ts in th e veh icle at the tim e of th e com mis sion of the crim e, inc luding legal, equ itable , and poss ess ory inte rests to en sure fair pla y to the innoc ent th ird pa rty, to p rotec t his use and p oss ess ion of prop erty fro m a rbitra ry enc roac hm ent, a nd to min imize subs tantiv ely unf air or mis taken d eprivations of prope rty. See Jam es Da niel Goo d Rea l Property , 510 U.S. at 58, 114 S.Ct. at 50 0-501; Crosby , 568 A.2d at 241. Tenn. Code Ann. § 55-10-4 03(k)(2)(1995 Supp. ) direct s the tri al judge, after determining that the veh icle is subje ct to forfeitur e, to notify the de partm ent of sa fety to determ ine the se curity or possessory i nterests exi sting i n the vehicle. Based upon thi s informati on, the t rial j udge is then requ ired to send notic e by ce rtified ma il to any “ other owners and/or lienholders of record.” Id

. (emphas is added). This procedure exp licitly encompas ses the rights of innocent interest holders of “ti tled” v

ehicles. The provisi ons of the Tennessee Motor Vehi cle Titl e and Registration Law requiri ng persons to register thei r automobiles wi th the state provi des a means of identi fying the owner of a motor vehi cle if negligent ly oper ated to t he damage of other persons and as a means of notifying “all the world” of a ll interest holde rs in the au tomo bile. See State v. Booher , No. 01C0 1-9604 -CC-0 0131 (T enn. Cr im. Ap p. at Nas hville, Aug. 22 , 1997), reh’g deni ed , (Sept. 18, 199 7). H owe ver, n ot all “m otor v ehic les” a re req uired to be regis tered or titled . As e xem plified in the present case , a farm tract or is not required under current Tennessee l aw to be regi stered or titled. See Tenn. Code Ann. § 55-3-1 01(a)(3)(1 993). The forfeiture pr ovision a

t issue does not provide a meth od of as suring re asona ble notice to all interest hold ers of an “untitled” veh icle. In fact, it is uncert

ain whether a party see king forfei ture, or the tri al court,as provided i n subsection (k)(2), could ascertain the ident ity of allinnocent but

interest ed parties in the pr

operty ev

en upon a dili gent and ti me consuming inquiry . The impossibil ity of fulfi lli ng, as to “un titl ed” vehicl es, the notice requ irements of th e Fifth Amendment is fur ther complicat

ed by the f

oreclosi ng of any opportu nity to subse quently attac k the for feiture afte r the statuto ry hearing. See Tenn. Code Ann. §§ 55-10-403(k)(3); 55-10-40 3(k)(10) (1995 Supp.). I n other words, the forfei ture is f inal as t

o any innocent t hird-par

ty i nterest hol ders in th e property regardless of

whether they

had received notice. Thus, an innocent third pa rty i nterest hol der in “untitl ed” property is prohi bited fr

om protecting his interes t from f orfeiture.

9 See supra footnote 3 ( discussion of

due process ri ghts of in nocent thi rd party interest holders in property). 

## 12 innocen t third pa rty intere st holder in the sei zed prope rty. 8 

## If forfeiture of an “untitled” vehicle, such as a farm tractor, is per mitted, as suggested by the State, the absentee farm owner, the innocent bailo r or purchaser, or a party holding a security interest i n the property would be divested of their interes t without notice or opportunity to be heard. We do no t believe that the legislature intended such harsh results.

Statutory authority empowering the State to seize and forfeit private property inherently carries with it an obligation to insure that the power is not abused. 9 

## Redd , 895 S.W.2d at 335. Incidental to this obliga tion is the court’s duty

not to construe a10 Aga in, we em pha size th at ou r hold ing as to the interp retat ion of the te rm “veh icle” is expressly limited to the term as used in the context of the 199 5 DUI forfeiture provisions. We do not expan d this interpr etation to the 1996 re visions of the DU I forfeiture p rovision. See supra footnote 4.

11 We do not dispute the val idit y of the appellant’s ex pos t facto argument. However, e ven if the pr ovision o perates ex pos t facto , there i s nothing i n the law t o prohibi t an ex pos t facto forfeiture. Moreover,although i n force on the da te of the pr

esent offense, this provision has si nce 

## 13 statute as imposi ng a forf eiture whe n a statu tory term i s capable of two constructions. See generally37 C.J.S. Forfeitures § 6. See, e.g. , State v. Stagno , 739 P.2d 198, 201 (Alaska App.), reh’g denied , (1987) (holding that s tatute authorizing forfeiture, foll owing a DUI conv iction, of motor vehicle of ty pe for which a driver’s license is required does not appl y to an air boat operated on l and). The power of the government to deprive a citizen of his property by forfeiture must rest on the plain language of the sta tutory provision, and cannot be found in any supposed inherent or common law judicial power. Crosby , 568 A.2d at 237 (citations omitted). Again, the challenged prov ision before this court does n ot provide for procedures to be followed regarding “untitled” vehicles . Under the maxim of statutory interpr etation, expressio unius est excl usio alterius, i.e. , the expression of one thing i s the exclusion of another, and rules of interpretation applicable to forfeiture and penalty provisions, see discussion supra , we are unable to expand the forfeiture provision of Tenn. Code Ann. § 55-10-403(k) (1995 Supp.) to include “untitled” v

ehicles, such as, in the c ase sub judice , a farm tractor. For these reasons, we hold that the app licable 1995 provisio ns of Tenn. Code Ann. § 55-10- 403(k) expressly

limit the forfeiture of vehicl es used in the commission of a thir d or subsequent DUI to those v ehicles which are “

titled” within the St

ate of Tennessee. 10



## B. Remaining Issues A ttacking the Validity

of the Forfeitur

e The appellant also contests the validity of the forfe iture of his John Deere tractor arguing that,since one of his prerequis ite convictions occur red in 1990, prior to the enactment of the forfe iture provision, the provision operates ex post facto against hi m. 11 

## Following the same rationale, he contends that, at the time of his f irstbeen a men ded, ther eby rende ring any futu re argum ent on this issue m oot. See Tenn. Code Ann. § 55-10-403(k)(2) (1996 Supp.).

12 The appe llant a lso de nies notic e of th e pot entia l of fut ure f orfe iture a t the tim e of h is secon d convic tion. Id . The recor d befo re us is void of a ny proo f which supp orts the appe llant's fact ual all egat ion that he wasnot p rovi ded noti ce of possi ble forf eit ure u pon his secon d DUI conviction . This bu rden res ts with the ap pellant. Th us, this claim is without m erit. 

## 14 DUI conviction, he cou ld not have been provided with notice of the possibi lity of subsequent forfeiture if convi cted in the future of the same offense. 12 

## See Tenn. Code Ann. § 55-10-403(g)(1). Additionally, the appellant asserts that the “[f ]orfeiture of [his] farm tractor in this case is entirely punitive,” that he is entitled to compensation for the extensiv e repairs made to the tractor, and that the State initiated the forfeiture proceedings in bad faith . Because of our holding that a farm tractor, being an “untitled” vehicle, is not encompassed within the appli cable 1995 forfeiture provisions, w e find it unnecessary to addr ess the appellant’s remainin g contentions.

Conclusion

After a re view of the record, t he applic able stat utory provi sions, an d the law, we affirm the sentence imposed by the trial court. How

ever, as we have c

oncluded that the challenged 1995 provision of the DUI forfeitu re statute does not encompass a farm tractor as a vehicl e subject to seizure, the order of the trial court manda ting the forfeiture of the appellant’s John Deere tractor is rev ersed. Possession of the John Deere tractor is r

estored to the appellant. This c ase is remanded to the trial court for further proceedings consistent with this

opinion.

____________________________________ DAVID G. HAYES, Jud ge

## 15

CONCUR:

_______________________________ DAVID H. W ELLES, Judge

_______________________________ THOMAS T. W OODALL, Judge

APPENDIX I
Tenn. Co de Ann. § 55-10-403(k ) (1995 Supp.) , provides in part: (1) The judge heari ng a thir d or subsequent vi olati on of § 55-10-401, or the thi rd or sub seq uen t violatio n of a ny com binat ion of violatio ns of § 55- 10-4 01 an d driv ing w hile intoxi cated viol ations committed i n other stat es, shall

declare t he vehicl e used in the com mis sion of su ch of fens e to b e con traba nd an d sub ject to forfe iture a s pro vided in this subsect ion.

(A) If the ve hicle is titled in the n am e of th e off end er, wh o is th e sole unencumbered owner, the veh icle shal l be forfeited by the court i

f the owner committed the vi olati on using the v ehicle. (B) If t he vehicl e is titled i n the name of one(1) or more person(s) who is not the o ffen der, a nd th e veh icle is n ot ren ted o r leas ed by a person or company regul arly i n the business of renting or leasi ng vehicles o r driven by an employee of the owner, the vehicl e, or an interest in the ve hicle, shall be d eclared for feited by

the court i

f the owner or co-owner knew of and consented to the ill egal or i ntended ill egal use of such v

ehicle. (C) If t he vehicl e is titled i n the name of a person or company whi ch is in t he business of r enting or leasing v

ehicles, the vehicl e shall be forfeit ed if the renting or leasi ng agent knew of and consent ed to the ill egal or i ntended il legal use. (D) If t he vehicl e is a commercial vehi cle or common carrier and the offe nde r is an em ployee of the own er, the vehic le sha ll be fo rfeite d if the employer knew of and consented to the ill egal or i ntended il legal use. Such forfei

ture does not apply t

o cargo or product

s, not otherwise subj ect to confi scation under any other

laws of the

state or federal gov

ernment, transpor

ted by such v

ehicle. Such cargo or products shal l, upon r equest, i mmediately be made avail able for release to the own er or the tra nsporting agent. (E) If the ve hicle is titled in the n am e of a pers on w hos e inte rest is sub ject to forfe iture a s pro vided in this s ubs ectio n, bu t the ve hicle is subject to a security

interest acquired i n good fait h, the i nterest of the secured party

shall be f

orfeited if the

holder of the interest had knowledge of, at

the ti me the interest attached, and consented to the ill egal or i ntended il legal use of the vehicle.

## 16 (2) If the judge heari ng a thir d or subsequent vi olati on of § 55-10-401, or the thi rd or sub seq uen t violatio n of a ny com binat ion of violatio ns of § 55- 10-4 01 an d driv ing w hile intoxicated violations co mm itted in other s tates, dete rmine s that a ve hicle is sub ject to forfeiture pursuant t

o this subsect ion, such j udge shall n otify or cause to be not ified the department of

safety, motor vehicl e division, to determine whether t he person using the ve hicle t

o commit such offense is t he sole unencumbered owner of su ch vehicle. If such person is not the sole unencum bered owner of the vehicle, the court shall send a copy of a conditionalorder of for feitur e by certi

fied mail t

o any other owners and/or l ienholder s of record. A copy of th e conditi onal forfeiture or der shallbe open to the publ ic for i nspection. (3) A ny per son or co rpor ation claim ing an y vehic le forf eited purs uan t to this subsection may, not lat er than thi rty (30) days fr om the date of recei pt of the conditi onal order of

forfeiture, fi le wit h the court a claim in wri

ting, requesting a hearing and statin g such person ’s or corp oration’s inte rest in the ve hicle. Failure to file su ch a claim wit hin the t ime specified shall, without exception, constit ute a waiver of such clai m. An indigent person may fil e such person’s cl aim in forma pauperi s by fili ng with such per

son’s clai m an affidavit stati ng that such per son is unable

to bear the cost of the proceeding. The court shall conduct a heari ng on the clai m as soon as practicabl e after t he time withi n which to f ile a cl aim has expired and shal l noti fy the claima nt of suc h date. . . . (4) At each cl aim hearing aut horized i n this subsect ion, t he state shal l have the burden of provi ng by a preponder ance of the evi dence that t he vehicl e was used in a manner making it subject to forfei

ture under t he provisi ons of thi s subsection, and that the c laim ant e ither h as c om mitte d the requ ired n um ber o f offe nse s or th e claim ant’s interest was subject to forfeiture as provi ded in subdi vision ( k)(1). Fai lure to ca rry t he burden of proof shall operate as a bar to any forfeiture hearing hereund er. (5) If the ruli ng of the court is favorab le to t he claimant, the court shal l rescin d the conditi onal order of

forfeiture. If

the ruli ng of the court is adverse t

o the clai mant, the cou rt sha ll proc eed as to suc h veh icle in a cco rdan ce w ith the prov isions of this subsection. (6) W hen ever in any p roce eding unde r this s ubs ectio n a cla im is filed fo r any v ehic le conditi onally

forfeit ed as provided i n this subsect ion, t he court shal l not al low the claim unles s and until th e claim ant p rove s tha t suc h claim ant h as a le gal int eres t in such vehicl e as owner or other wise, whi ch such claimant acqui red in good f aith. (7)(A) Pendi ng any proceedi ng to forfei t a vehicl e or the i nterest of any person i n a vehicle,any owner, co-owner, or secu red party may obtain i mmediate possession of the vehicl e by submitti ng to the j urisdiction of th e court and by posting a bondas establi shed by the cour t. The court

shall est

ablish bond as foll ows: (i)If t he per

son ha s an i nter

est u nder subdivis ion (k)( 1)(B ), t he NADA retail value of t he vehicl e; (ii)If the per

son has an inter

est under subdivision ( k)(1)(C) or (k)(1)(D), one thousand do llars. . . or; (iii) If th e person has an int erest under subdi

vision ( k)(1)(E), the NAD A value o f the vehic le less the v alue of the security intere st. . . . (B) Any owner , co-owner, or secured part y which fa ils t

o produce the vehi cle at t he time of an order or final forfeiture, or t

o tender to the court the value of the interest whic h is fo rfeite d, sh all hav e the bond post ed w ith the cour t forfe ited in lieu of and in the same manner as such vehicle. (8) At al l heari ngs provided f or by this subsection, the court sha ll cause a r ecord of the eviden ce add uced a t such h earing to b e taken and m aintained. . . . (9) The acti on of the court is subject

to revi ew in the same manner as is provided by law or rul e for appeals from other determinations of the court conduct ing the hearing.

. . . (10) If no

claim is i nterposed, the court shal l enter a finalorder of for

feitur e, such vehicle sh all be f

orfeited without

further pr

oceedings and the

same shall be seiz

ed by the sherif

f . . . and sold as prov ided herei n. The above procedur e is the sol e remedy of any cl aimant and no court shall hav

e jurisdi ction to interf ere therewith by replevin, injunction, supersedeas or in any other man ner.

## 17 (11) If the court’s order of for feitur e is affi rmed on appeal . . . the vehi cle shall be seized . . . and sold . . . . (12) . . .The procee ds from the sale o f such v ehicle sh all be allocate d . . . . (13) No ve hicle s hall be forfe ited, s old, o r othe rwise dispo sed of un til the p erso n is con victed of the requ ired n um ber o f offe nse s for whic h for feitur e of s uch vehic le is authorized. (14) . . . if the ruling o f the cou rt is favorab le to the claim ant, the co urt shall delive r to the claim ant the ve hicle so s eized. . . .