FILED

March 17, 1997

Cecil W. Crowson

Appellate Court 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.
1Tenn. Code Ann. § 39-17-417 (1991).

2Although noting that the evidentiary issues raised by the

defendant were waived, the Court of Criminal Appeals addressed them

on their merits.

2

John Derrick Martin, the defendant, was convicted by a

jury on four counts of possession and sale of cocaine 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.

In this 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

affirm Martin’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, albeit on different

grounds.2
3The informant died prior to trial.

3

I

Using an informant, officers of the Metropolitan

Nashville-Davidson County Police Department orchestrated three

controlled drug purchases from the defendant. Each transaction was

recorded on audio tape.

At trial, the jury heard a redacted version of the taperecorded conversations 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.

In addition to the officers’ testimony, the vehicle

driven by 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

In his first two issues, Martin contends that the

admission of tape-recorded statements of the informant3 violated

his constitutional right to confront the witness against him and

that it was error, under Tenn. R. Evid. 404(b), for the trial court

to admit evidence of his prior drug offense.
4

Martin concedes 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 not have

jurisdiction to 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

consideration of ruling on a 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 presented in the motion for new trial.

Dodson, 780 S.W.2d at 780; Givhan, 616 S.W.2d at 613; Massey, 592

S.W.2d at 333. 

This Court, 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 not
4The admission of an informant’s non-hearsay 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 the constitutional rights of the

defendant. Id.; Dutton v. Evans, 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 identity 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

In his last issue, Martin insists that because he did not

waive his right to have a jury fix his fine, the trial judge erred

in fixing a fine of more than $50. According to Martin, this

action constitutes reversible error and entitles him to a

completely new trial before a new jury because the state

constitution requires that the fine be fixed by the same jury that

determines guilt. Because this issue concerns sentencing, it is

properly before the Court.

Contained in the original state constitution of 1796 and

carried forward into both 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

fifty dollars, unless it shall be

assessed by a jury of his peers, who

shall assess the fine at the time

they find the fact, if they think
6

the fine should be more than fifty

dollars. (emphasis added).

A trial judge may fix a fine of more than $50 in only two

circumstances. They are: (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

statutorily specified and allows no judicial discretion in its

imposition, France v. The State, 63 Tenn. 479, 486 (1873).

In the 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

discretion because the statute prescribes only a minimum fine.

Thus, neither of the two exceptions applies. Consequently, the

trial judge lacked the authority 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 authority. The prohibition against a trial judge

fixing fines exceeding $50 was intended to protect citizens from

"excessive" fines fixed by a powerful judiciary. Upchurch v.

State, 153 Tenn. 198, 281 S.W. 462, 464 (1926).

The construction of this constitutional provision has

been addressed 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, 153
7

Tenn. 198, 281 S.W. 462 (1926); Johnson v. State, 152 Tenn. 184,

274 S.W. 12 (1925). We remanded each of these cases. In no case,

however, have we held that the same jury that found the defendant

guilty must also fix the fine. In fact, we explicitly held to the

contrary in 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, the Court’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

substance rather than with form. Ennix v. Clay, 703 S.W.2d 137,

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

new trial 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

determined by a different jury than that which determined guilt.

To illustrate, in Huffman we 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 guilty 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 and the fact

that the punishment 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 to have

affected the result of the trial on the merits, reversal of the

conviction is 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. A sentencing 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 established
5

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

and shall not be red uced, suspended, waived , or otherwise rel eased by the

court." Tenn. Cod e Ann. § 39-17-428 (d)(1)(1991).

9

by the legislature as mandatory in every case involving the

particular offense. In operation, this provision effectively

prevented the trial judge from exercising even the slightest

measure of discretion. In contrast, the statute pertinent here

establishes a mandatory minimum fine.5 Hence, judicial discretion

is involved to determine whether the fine imposed is the minimum or

whether it should exceed the minimum. Thus, France is

distinguishable and inapplicable here.

I V

In conclusion, we hold that Martin waived his right to

appeal the admission of the informant’s statements and the

admission of the prior drug offense. We find that Article VI,

Section 14 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 Appeals 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.