# FILED Jan. 17, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

________________________________________________ STATE OF TENNESSEE, Appellee, Shelby Circuit No. 71235 T.D. Vs. C.A. No. 02A01-9607-CV-00152 JOHN GUINN, Appellan t.

___________________________________________________________________________

FROM THE CIRCUIT COURT OF SHELBY COUNTY THE HONORABLE D’ARMY BAILEY, JUDGE

W. Mark Ward, Assistant Shelby County Public Defender

For Appellant Charles W. Burson, Attorney General and Reporter Ellen H. Pollack, Assistant Attorney General

For Appellee

AFFIRMED AND R

EMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE

This is a juvenile delinquency proceeding. D efen dant, John Guinn, appeals from the order of the Circuit Court of Shelby County on a jury verdic t finding defendant guilty of committing the delinquent act of attempt to commit murder in the second degree.2 On May 12, 1995, a petition was filed in Juvenile Court for Shelby County, Tennessee, charging the defendant

with the de

linquent a ct of atte mpt to commit murder in the firs tdegree. After an evidentiary hearing in juvenile court, d efe ndant was found to have committed the delinquent

act and was committed

to the Ten

nessee D epartme

nt of Youth

Development for an indefinit e period of time. Defendant appealed to the cir cuit court for a trial de novo, and the record was cer tified to t he circ uit court o n July 18, 1 995. On Jul y 19, 1995, defenda

nt filed a motion in the circuit court to stay the judg ment of the juv enile court and to set bond. T

his motion was granted, and defendant

was released from custody pending the trial of the ca se. Defendant

demanded a jury, and the case was set for trial on December

6, 1995. At the conclusion of the trial on December 12, 1995, the jury returned a verdict finding that defendant had committed the delinquent act of attempted second degree murder. The cour t subseque

ntly entered an order on the jury verdict, and the defendant has appealed. Defend ant’s br

ief state s the issue s for review as: 1. Whether the trial judge erred in failing to dismiss the petition against the appe

llant on the

grounds th at the court fa iled to condu ct the ap peal hearing within 45 days as required by Tenn. Code Ann. § 37-1-159. 2. Whether

the petiti on should b e dismisse d as the ju ry faile d to return a verdict

finding thatappella

nt committe d a delinq

uent act . As to defen dant’s f

irst issue , defend ant asse

rts that the trial court erred in not granting his pre-trial motion to dismiss the case with prejudice because the c ircuit court hearing was not held within the time prescribed by statute. T.C.A. § 37 -1-159 ( 1996) pro vides in pa rt pertinent to this a

ppeal: 37-1-159. Appeals

. - (a) T he juvenile court shall be a court of record and any a

ppeal fr om any fin al or der or judgment in a delinquency proceed ing, unruly child proceeding, or dependent and neglect

procee ding, file d under th is chapte r , excep t a procee din g pursu ant to § 37- 1-134, ma y be made

to the cir cuit court which shall hear the testimony of witnesses and try the case de novo. The appeal shall be perfected within ten (10) days , excluding nonjudicial days, following the juvenile cour t’s disposition. If a rehearing o f a m atter heard by a referee is not requested or pr ovid ed pursuant to § 37-1-107(e), the date of the expiration of the time

within which to request rehearing shall be t he date of disposition for appeal purposes, and the part ies an d their attorneys shall be so notified by t he refe ree. If there is a rehearing by the judge, the appeal period shall commence the day after the order of disposition is entered.3 (b) An appea

l does not s uspend the

order of the juven

ile cour t, nor does it release the child from the custody of

that court or of that person, institution or agency to whose care the child has bee n committed. Pending the hearing, the circuit court may make the sametempora

ry disp ositi on of the c

hild as is ve sted in juv enile courts; provided, that

until the circuit court has entered an order for tempora ry disposition, the o

rder of the juven

ile cour t shall remain in effec t. (c) When an

appeal h as been p erfec ted, the j uvenil e co urt shall cause the entir e recor d in the case, including the juvenile court’s findings and written reports from probation officers, professional court employee s or prof

essional consulta nts, to be t aken for thwith to the circuit c ourt whos e duty it is, either in term or in

vacation, to set the case for an early hear ing. When an appeal is taken from a juvenile court’s decision t hat invo lves removal of a child or children from the custody of their natural and/or

legal parents or guardian or from

the department of children’s services, or when the decision appealed

involves the deprivation of a child’s liberty as the r esult of a finding that such child engaged in criminal activity, such hea

ring shal l be held

within forty-five (45) days of receipt of the findings and re

ports. In its order, the circuit court shallremand t

he case to the juve

nile court for enforcement of the judgmentrendered by the circuit court. Appeals fr om an order of the circuit court pursuant to this subsection may be carried to the court of appeals as provided by law. As previously noted, the juvenile court re cord wa s certif

ied to the circuit c ourt on Jul

y 18, 1995, and the trial of this case was commenc ed on December 6, 1995. In the meantime, defendant had obtaineda stay of the juvenile court judgment and was released from custody on bond pending the trial. Defendan t as serts tha t the circ uit court i s requir

ed to dismis s the cas e because the case wa s not comme

nced with in the 45 day period set out in T.C.A. § 37-1-159(c). We must respectfully disagree. It is a general rule that statutory provisions which relate to mode or time of doing an act to which the statute applies are not held to be mandatory, but are he ld to be directory only, especia lly when the

re is no showing of prejudice to the one seeking to invoke the time limit. Big Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 520 (Tenn. App. 1981). In Garrett v

. State of T

ennessee Dept. of

Safety , 717 S.W.2d 290 (Tenn. 1986), a truck

owner appealed the decision of

the Depa rtment of Safety pe rmitting fo

rfeitur e of his truck wit

h

an altered vehicle identification nu mb er. The administrative law judge, after conducting a heari ng on the case, failed to comply with the provisions of T.C.A. § 4-5-314 (g) (1985) requiring that a decision be rendered in writing within 90 days after conclusion of the hearing.4

Our Supreme C ourt, af

ter noting that forf eiture st atutes a re stric tly construe d becau se forfeitures

are not favored in the law and that because the proceedings are qua si criminal the presumption of innocence must be considered, said:

Although we are in agreement with the general rule s stated above, we will

not construe any statute, including a confiscation statute, so strictly thatwe negate the intentions of the legislators who passed the law. Althoug h the legislative intent behind the ninetyday requ

ir ement in T.C.A. § 4-5-314(g), is not clear, the general rule in thi s state is that statutory provision relating to the time of doing an ac t to which statute applies are directory rather than mandatory. See Trapp v. McCormick , 175 Tenn. 1, 130 S.W.2d 122, 125 ( 1939); Big Fork Mining Co. v . Tennessee WaterQuality Control Board , 620 S.W.2d 515, 520 (Tenn. App. 1982), cert. deni ed (Tenn. 1981). This is especially true absent some showin g of

prejudice. Id. Thus, in cases like the present one where no prejudice has been shown, we can inf er that the legislature intended for the ninety day pro vision to be directory in nature. Since the

statue is d

ir ectory r ather than mandatory, violation of the ninety day rule does not nullify the forfeiture hearing or order. Garrett , 717 S.W.2d at 291. In the case before us, the

45 day period relates only to the time for the hearing and does notrelate to the merits of the case. Defendant was duly rele ased from custody after the appeal

was filed, and there has been no showing of any prejudice to the defe ndant by the fa ilure to conduct the trial within the

45 day pe

riod. ThisCourt, like our Supreme Court in Garrett , can infertha t the legis lature in tended th e 45 day p

rovision to

be directory in na

ture. Thi s i ssue i s without me

rit. In defendant’s second issue, he asserts that he could not have committed a delinquent act of at tempt ed second degree murder bec ause there is no criminal offense of attempted sec ond decree murder in this state. We must respectfully disagre e. T.C.A. § 39 -12-101 ( 1991) pro vides: 39-12-101. Criminal attempt. - (a) Aperson commits criminal attempt who, act

ing with the

kind of culpability o therwise required for the offense: (1) Intentionally engage s in action or cause s a resul

t that woul d constitute an offense if the c ircumstances sur rounding the conduct were as the person believes them to be; (2) Acts with intent to cause a result that is an element of the off ense, and belie

ves the c onduct wi ll cause the result w ithou t further conduct on the person’s part; or5 (3) Acts with intent to complete a co urse of action or cause a result that would

constitute

the offense, under the circumstances surrounding the conduct as the person believes them to be, and the conduct constitutes a substantial step toward the commission of the offense. (b) Conduct do es not constit ute a substantial step under subdivision (a)(3) unless the persons’ entire course of action i s corroborative of the intent to commit the offense. (c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed. Defendant contends that since second degree murder is “a knowing killing of another” T.C.A. § 39-13-210 (a)(1) (1991), an attempt to commit second degree murder would involve the “specific intent” to commit “a knowing act.” We do not disagree that that could be t he resul t, butit is clear that

in second degree murder, the murder is the intended r esult of the perpetrator’s act. If the perpetrator act ually poss e sses an in

tent to kill , he or she

may be ch arged w ith attempted murder. See State v. Kimbrough , 924 S.W.2d 888, 892 (Tenn. 1996). Once a homicide or attempted homicide it establish ed, it is pr esumed to

be the of fense of murder in t he sec ond degr ee or an attempt to

commit mur

der in the second d egree, and to elevate the offense to first degree murder or an attempt thereof, the state must prove

the eleme nts of premeditation and deliberation. State v. Boyd , 909 S.W.2d 50, 53 (Tenn. Crim. App. 1995). In Boyd , the Court of C rimin al Appea ls held tha

t the evid ence wa s insuffic ient to sup port a conviction for atte

mpted fir st degre e murder but was su fficien

t to suppor

t a c onviction for attempted second degree murder. Accor dingly, the judgment of

the trial court

was modified, and the case was remanded for new sentencing. Id . at 55. We find both of appellant’s issues without merit. The judgmen t of the trial court is affirmed, and the c ase is remand ed to the trial court for such further proceedings as may be necessary. Costs of the appeal are asse ssed against the appellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

_________________________________ ALAN E. HIGH

ERS, JUDGE

_________________________________ DAVID R.FARMER,

JUDGE