# FILED
June 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9802- CC-00050 Appellee, ) ) McNairy County V. ) ) Honorable Jon K erry Blackwood, Judge ) TERRON PAUL BORDEN, ) (Violation of HMVO Order) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Lloyd R. Tatum John Knox Walkup Tatum, Tatum & Weinman Attorney General & Reporter Attorneys at Law 124 E. Main Street Peter M. Coughlan P.O. Box 293 Assistant Attorney Gener al Henderson, TN 38340 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 Elizabeth T. Rice District Attorney General Ed Neal McDaniel Assistant District A

ttorney General 302 Market Street Somerville, TN 38068

OPINION FILED: ___________________
REVERSED AND

DISMISSED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Terron Paul Borden, was arrested on February 28, 199 7, in McNairy County for driving on a rev oked license, speeding, and violation of the Motor Vehicle Habitual O ffenders Act (HMVO). He re tained a lawyer. C

ounsel appeared with him in the M cNairy County Gener al Sessions Court on Apri l 18, 1997. Plea negotiations ensued.The appellant entered a guilt y plea to driving on a revoked license. H e waived his rig ht to a preliminary hear ing on the HMVO charge. A true bill of indictment was returned by the McNairy County Grand Jury on the HMVO charge on June 9,1997.
The appellant filed a motion to dismiss in the McNairy County Circuit Court based on double jeopardy provisions. The trial

court denied the motion to dismiss. After plea negoti ations concluded, the appellant entered a guilty plea to the HMVO violation but reserved the rig ht to appeal a certified questi on of law pursuant to Rule 37(b) of the Tenness ee Rules of Criminal Procedu re. The appellant perfected his appeal to this Court.

The issu e before this Cou rt is s imple. U nder the provi sions of State v. Green , 947 S.W.2d 186 (Tenn. Crim. App. 1997), can the appel lant be convicted of both driving on a rev oked license and a violat ion under HMVO? We conclude that he cannot be convicted of both crimes.

In Green , this Court found that driv ing on a revoked lic

ense is not a lesser included offense of violating the habitual motor vehicle l aw. We further found that und er the pr

ovisi ons of Duchac v. State , 505 S.W.2d 237 (Te nn. 1973), these two offenses are the “same” for double jeopardy purposes under the Tennessee Constitution. The Court foun d that under the principles enunciated in State v. Denton , 938 S.W.2d 373 (Te nn. 1996), double jeopardy principles were-3- violated; and a defendant could not be convicted of both driv ing on a revoked license and a violation of HMVO.
The Attorney General concedes this issue. The state agr ees that convicting this appellant of both crimes violates double jeopardy provisions.
The judgment of conviction of v iolation as a habitual offender under the Motor Vehicle Habitual Offenders Act (HMVO) is reversed, and the indictment is dismissed.

__________________________ PAUL G. SUMMERS, Ju dge-4- CONCUR:

_____________________________ DAVID H. W ELLES, Judge

_____________________________ JOE G. RILEY, Judge