### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 5, 2002 STATE OF TENN ESSEE v. WOODSON C ARTER CRINE R Appeal from the Circuit Court for Lauderdale County No. 6943 Joseph H. Walker, Judge

No. W2001-01940-CCA-R3-CD - Filed October 31, 2002

The defendant, Woodson Carter Criner, was convicted in the L auderdale County

Circu it Cou rt of driving under the influenc e (DUI ) and re ceived a

sentenc e of eleven months , twenty-nine day s to be susp e nded after serving one hundred twenty days in jail and a fine

of one thousand one hundred dollars. The state

appeals , claim ing that the defendant’s DUI sentence is illegal because the defendant was convicted of felony

DUI. Although we hold that the tr ial co u rt could sentence the defendant to less tha

n one y ear for a Class E felony, we

remand the case to the trial court to clarify whether the defendant was convicted of felony or misdemeanor DUI, re vi ew the defendant’s sentenc e, and reenter the judgme nt. Tenn. R. App. P. 3 Appeal as of Right; Judgment Vacated, Case Remanded
J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.
Paul G. Summers , Attorne y General and Repor

ter; P. Robi n Dixon, Jr., A ssistant A ttorney Genera l; Elizabeth T. Rice, District Attorney Gen era l; a nd J. Thomas Caldwell, Assistant District Attorney General, for the appellant, State of Tennesse e. J. Thomas Caldwell, Ripley, Tennessee, for the appellee, Woodson Carter Criner.
OPINION
The defendant was charge d with and convicted of DUI a nd driving on a revoked license, the latter not being appealed. At

the defen dant’s bench trial, Officer Willard L ane, Jr. of the Ripley Police Department

testified that on June 5, 1999, he stopped the defendant’s car after see ing it run off the road twice. When Officer Lane approached the car and spoke to the de fendant, he noticed that the defe ndant smelled stron gly

of alcoh ol. Office

r La ne gav e the def

endant f ield sobr iety tests, which he could not complete. Officer L ane arrested the defendant, who w as taken to jai l. A breathalyzer

test revealed that the defendant’s blood alcohol content wa s 0.24 percent. T he state introduc ed judg ments show ing that the defe ndant had four pri or DUI

convicti ons.-2-

The trial transcript and the trial court’s written order reflect that the trial cour t found that the state had pr oven b eyond a reas onabl e doub t that the de fendan t was gu il ty of driving on a revoked license and fel ony DUI. At t he sen tenci ng heari ng, the trial court sentenced the defendant to eleven months, twenty-nine days for each conviction. For the DUI , it also ordered the defendant to serve one hundred twenty

days in confineme

nt and pay the statutory

minimum fine of one thousandone hundred dollars. After the trial c ourt anno unced the sentenc es, the st

ate asked the trial court if it was sentencing the defendant for DUI , third of fense , which is a misdemeanor. The trial court replied, “It’s 11 months and 29 day s for a DUI four th.”
The state appeals, claiming that the defendant’s misdemea nor sentence for a felony conviction is illegal. The d efenda nt conten ds that the

trial cou rt prope rly sentenc ed him bec ause according to the j udgme nt, the trial court found him guilty of DUI, third offense. I

n addition, he co nt en ds th at th e s ta te ’s ap pe al is ba rr ed by t he pr ot ec ti on s a ga in st do ub le je op ar dy.
Relative to punishment s for third and fourth DUI convictions, Tenn. Code Ann. § 55-10- 403(a)( 1) provid

es:
For the third conviction, there shall be imposed a fine of not less than one th ou sand one hundred dollars ($1,100) nor more than ten thousand dollars ($10,000), and the person o r perso ns shall be confinedin the county

jail or wo rkhouse for not less than one hundred twenty (1 20 ) d ays nor more than eleven (11) months and twenty-nine (2 9) days . . . . Notwithstanding a ny other provision of law to the co nt ra ry, the fourth or

subseque nt convic tion shall b e a Class E felony punishabl e by a

fine of n ot less than three thousand dollars ($3,000) nor more than fifteen thousand dollars ($15,000); by confinement for notless than one hundred fifty (150) consecutive day s, to be served day for day, nor

more than the maximum punishment authorized for the appropriate range of a Class E felony . . . .
The range of punishment for a Range I , standardoffender convicted of a Class E felony is one to two years. Te nn. Code Ann. § 40-35-112(a)(5).
Alth ough the state contends that the minimum sentence allowed in this case was one year f or the defendant’s felony

DUI conviction, we

note that Tenn. Code Ann. § 40-35-211(2) permits a trial court to impose a

lesser p unis hment th an th e s ta tu to ry m in im um fo r a Ra ng e I, Cl as s E fe lo ny. Therefore, the trial

court couldproperl

y se ntence t he defe ndant toel ev en mo nt hs , t we nt y-n in e d ays for a DUI, fourth offe

nse. However, the trial and sentencing hearing transcripts conflict reg arding whether the trial court co nvicted t he defe ndant of m

isdemea nor or fe lony DUI . At the be

nch tria l, the trial court stated that the defend ant was guilty of felon y D UI, but at the se

ntencing hearing , it sentenced him to the statutory minimum fine and time served in confinement for DUI , third offense, a misdemeanor. Moreover, the judgment of conviction reflects that the defendant was convicted of misdemeanor

DUI. Normally , when conflicts exist between evidence transcripts and court minu

tes,-3-

the transcr

ipts control. See State v. Moore , 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991). Given the fact that

the judgment differs from the transcript, but the trial and sentenc ing hea

ring tr anscrip ts reflect contradictory

convictions, we conclud e that we must va

cate the judgmen t and rem and the c ase to the trial

court to r

esolve the confli cts, revie w the def endant’s DUI sentenc e, and enter an appropr iate judg ment.
The defenda

nt claims t

hat the sta te’s app eal viola

tes his rig hts aga inst double

jeopardy. The double jeopardy c lauses of both the UnitedStates and Tennessee Constitutions state that no person shall b e twice put in jeopardy of life or limb for the same offense. U.S. Const. amend. V; Tenn. Cons t. art. I, § 10. However, our supr eme court has held that the state’s appeal of a de fendant’s illegal sentence does not violate double jeopardy protections. See State v. Russell , 800 S.W.2d 169, 172-74 (Tenn. 1990). Based on the foregoing

and the record as a whole, we vac ate the judgment and remand the case to the trial court for proceeding s consistent with this opinion.

___________________________________ JOSEPH M. TIPTON, JUDGE