# FILED March 17, 1997 Cecil W. Crowson Appellate Cou rt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: MARCH 17, 1997 Appellee ) ) DAVIDSON COUNTY V. ) ) HON. ANN LACY JOHNS, JOHN DERRICK MARTIN ) JUDGE ) Appellant ) NO. 01-S-01-9605-CR-00091

For Appellant : For Appellee : JOHN E. HERBISON JOHN KNOX WALKUP Nashville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General LINDA A. ROSS Associate Solicitor General EUGENE J. HONEA Assistant Attorney General Nashville, TN VICTOR S. JOHNSON, III District Attorney General CHERYL A. BLACKBURN Asst. District Attorney General Nashville, TN

OPINION

AFFIRMED AND REMANDED BIRCH, C.J .1 Tenn. Code Ann. § 39-17-417 (1991).
2 Althoughnoting that the evidentiary issues raised by the defendant were waived, the Court of Criminal Appeals addressed them on their merits. 2

JohnDer rick Martin, the defendant, was convicted by a juryon four counts of possession and sale of co caine in various amounts. 1 The trial judge sentenced Martin to consecutive ten-year sentences and imposed a fine of $10,000 for each count. The Court of Criminal Appeals affirmed the convictions, modified the sentences, and remanded the cause to the trial court so that a jury could determine the fine.

Inthis appeal, Martin contends (1) that the admission of tape-recorded statements of an informant at trial violated his state and federal constitutional rights; (2) that the admission of evidence of a prior drug offense was erroneous under Tenn. R. Evid. 404(b); and (3) that he is entitled to a new trial because the trial judge unconstitutionally imposed fines in excess of $50. For the reasons stated herein, we hold that Martin waived his right to appeal the admission of both the tape-recorded statements and the admission of the prior drug offense. On the fines issue, we hold that a new trial is not constitutionally required. Therefore, we affirmMartin’s convictions and remand this cause to the trial court where a new jury shall be empaneled for the purpose of fixing the amount of the fines to be imposed. Thus, the judgment of the Court of Criminal Appeals is affirmed, alb eit on different grounds. 23 The informant died prior to trial. 3 I
Using an informant, officers of the Metropolitan Nashville-Davidson County Police Department orchestrated three controlled drug purchases fromthe defendant. Each transaction was recorded on audio tape.

At trial, the jury heard a redacted version of the taperecorded c o nversations between the defendant and the informant. Also, officers testified about the persons involved and the events surrounding the drug purchases. Each officer identified the voices on the tapes as those of the informant and the defendant.

Inaddition to the officers’ testimony, the vehicle drivenby the defendant at the time of his arrest was the same vehicle used in the three drug buys. At his arrest, Martin had a substantial quantity of cocaine and cash in his possession.

II

Inhis first two issues, Martin contends that the admissionof tape-recorded statements of the informant 3 violated his c onstitutional right to confront the witness against him a n d that it was error, under Tenn. R. Evid. 404(b), for the trial court to admit evidence of his prior drug offense.4 Martinc oncede s that he failed to file a timely motion for a new trial which must be filed within thirty days from the date the order of sentence is entered. Tenn. R. Crim. P. 33(b). This provision is mandatory, and the time for the filing cannot be extended. Tenn. R. Crim. P. 45(b). A trial judge does no t have jurisdictionto hear and determine the merits of a motion for a new trial that has not been timely filed. State v. Dodson , 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989); State v. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1981); Massey v. State , 592 S.W.2d 333, 334- 3 5 (Tenn. Crim. App. 1979). The trial judge’s erroneous considerationof ruling ona motion for new trial not timely filed,
as in this case, does not validate the motion. Dodson , 780 S.W.2d at 780.

Failure to file a written motion for new trial within the required thirty days not only results in the appellant losing the right to have a hearing on the motion, but it also deprives the appellant of the opportunity to argue on appeal any issues that
were or should have been presente d in the m otion for new trial. Dodson , 780 S.W.2d at 780; Givhan , 616 S.W.2d at 613; Massey , 592 S.W.2d at 333.

Th is C ourt, however, has the authority to review the record for apparent errors to prevent needless litigation, injury to the interest of the public, and prejudice to the judicial process under the provisions of Tenn. R. App. P. 13(b). Moreover,
we may take notice at any time, within our discretion, of an error that affects a substantial right of an accused, even though not4 The admission of an informant’s non- hea rsay taped statement

was addressed in State v. Jones , 598 S.W.2d 209 (Tenn. 1980). In Jones , we held that the admission of a non-testifying informant’s statement did not violate th e co nstitutional rights of the defendant. Id. ; Dutton v. Ev ans , 400 U.S. 74, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970). In our view, the admission of Martin’s prior drug offense for the purpose of establishing identi ty and intent was harmless error. 5 raised in a motion for new trial, where it may be necessary to do substantial justice. Tenn. R. Crim. P. 52. We decline to exercise our discretion in this case. Accordingly, the evidentiary issues raised by Martin are deemed waived. 4

III

Inhis last issue, Martin insists that because he did not waive his right to have a jury fixhis fine, the trial judge erred in fixing a fine of more than $50. According to Martin, this actionconstitutes reversible error and entitles him to a completelynew trial before a new jury because the state constitutionrequires that the fine be fixed by the same jury that determines guilt. Because this issue concerns sentencin g, it is properly before the Court.

Contained in the original state constitution of 1796 and carried forward into b oth of the subsequent constitutions is the following provision now designated as Article VI, Section 14:

No fine shall be laid on any citizen of this State that shall exceed fiftydollars, unless it shall be assessed by a juryof his peers, who shall assess the fine at the time theyfind the fact , if they think6 the fine should be more than fifty dollars. (emphasis added).
Atrial judge may fix a fine of more than $50 in only two circumstances. Theyare: (1) when the defendant waives the right for jury determination of the fine, State v. Sanders , 735 S.W.2d 856, 858 (Tenn . Crim. App. 1987), and (2) when the fine is stat utor ilyspecified and allows no judicial discretion in its imposition, France v. The State , 63 Tenn. 479, 486 (1873).

Inthe present case, nothing in the record points to a waiver by the defendant of his right to have the fine fixed by the jury. Additionally, the trial judge exercised some measure of discretionbecause the statute prescribes only a min imum fine. Thus, neither of the two exceptions applies. Consequentl y, the trial judge lacked the author ity to fix fines of $10,000 in the various counts of this case.

To determine the remedy for this error, it will perhaps be helpful to understand the reason for the limitation upon the trial judge’s auth ori ty. The prohibition against a trial judge fi xing f ines exceeding $50 was intended to protect citizens from "excessive" fines fixed by a powerful ju diciar y. Upchurch v. State , 153 Tenn. 198, 281 S.W. 462, 464 (1926).

The construction of this constitutional provision has beenaddressed previously by this Court in at least four cases. Thompson v. State , 190 Tenn. 492, 230 S.W.2d 977 (1950); Scopes v. State , 154 Tenn. 105, 289 S.W. 363 (1927); Upchurch v. State , 1537

Tenn. 198, 281 S.W. 462 (1 926); Johnson v. State , 152 Tenn. 184, 274 S.W. 12 (1925). W e remanded each of these cases. In no case, however, have we held that the same jury that found the defendant guiltymust also fix the fine. In fact, we explicitly held to the contraryin Huffman v. State , 200 Tenn. 487, 292 S.W.2d 738 (1956).

Huffman is cited by both parties to this cause, but it is important to note its limitations. In that case, the Court remanded the case and directed that a new jury be empaneled for the sole purpose of fixing the fine. The Court then limited the jury to a maximum fine of $50. In our view, t he Cou rt’s action in limiting the amount of the fine on remand was not constitutionally required.

It has long been held in this state that provisions of the constitution are to be given effect according to the drafters’ intention in light of the entire document. Davis v. Williams , 12 S.W.2d 532, 535 (Tenn. 1928). Our constitution is concerned with subs tance rather than with form. Ennix v. Clay , 703 S.W.2d 13 7 , 139 (Tenn. 1986). The intent of the drafters was not to restrict the power of a jury to fix a fine but to impose a limitation on the judiciary. State v. Bryant , 805 S.W.2d 762, 767 (Tenn. 1991). Article VI, Section 14 does not require a reversal and an entire
newtrial when a trial judge fixes a fine in excess of $50 without the defendant’s waiver. By remanding this cause so that a jury may fix the fine, we preserve the intent of Article VI, Section 14.8 Moreover, sentencing errors have never necessitated a new trial on the merits. Cases abound in which punishment was determ ined b y a different jury than that which determined guilt. To illustrate, in Huffmanwe held that there is no constitutional requirement that the same jury fix the fine that finds the accused guilty. 200 Tenn. 487, 292 S.W.2d at 738. Similarly, in Bryant we held that if there is a guilt y plea and no jury waiver, a jury shall be empaneled to fix a fine. 805 S.W.2d at 762. Likewise, in Hunter v. State , 496 S.W.2d 900 (Tenn. 1972), we held that where the death penalty cannot be validly carried out, the cause is to be remanded for a new sentencing hearing before a jury an d the fact that the pun ishme nt is fixed by a different jury from that which assessed guilt does not violate the rights of the accused. Id. at 904-904.

It has long been the rule that unless an error is prejudicial, that is, one that affirmatively appears t o ha ve affected the result of the trial on the merits , reversal of the convictionis not authorized. Tenn. R. Crim. P. 52(a). It plainly appears from the reading of this record that no such error exists in this case. Asentencing error did not affect the merits of the case under submission.

Finally, the State urges that we fix the minimum fine as is statutorily prescribed for each of these offenses--a resolution, the State argues, that is supported by the case of France v. The State , 64 Tenn. 478 (1873). In France , we upheld the trial judge’s fixing of a $500 fine. Such a fine, however, had been established5 The minimum mandat ory fine, is based upon the followin g : First conviction for a felony drug offense ...............$2,000 Second conviction for a felony drug offense ..............$2,500 Third or subsequent conviction for a felony drug offense..$3,000 Tenn. Code Ann. § 39-17-428(b)(7-9) (1991). Specifical ly, the statute states that "the minimum fines imposed

by this section shall be mandatory andshall not be red uced, suspended, waived , or otherwise rel easedby the court." Tenn. Code Ann. § 39-17-428 (d)(1)(1991). 9 bythe legislature as mandatory in every case involving the particular offense. In operation, this pro vi sion effectively pre vented the trial judge from exercising even the slighte s t
measure of dis cretion. In contrast, the statute pertinent here establishes a mandatoryminimum fine. 5 Hence, judicial discretion is involved to determine whether the fine imposed is the minimum or whether it should exceed the minimum. Thus, Franc e i s distinguishable and inapplicable here.

I V

Incon clusio n, we hold that Martin waived his right to appeal the admission of the informant’s statem ents and the admissionof the prior drug offense. We find th at A rticle VI, Section14 does not require the same jury that determines guilt to fix the fine. We remand this cause and direct that a new jury be empaneled for the sole purpose of fixing fines.

Thus, the judgment of the Court of Criminal Ap peals is affirmed as to the fines. The judgment of the Court of Criminal Appeals is affirmed as to the remaining issues for the reasons expressed herein.

________________________________________ ADOLPHO A. BIRCH, JR., Chief Justice CONCUR: Drowota, Reid, JJ.; Todd, S.J.