         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  November 14, 2000 Session

                STATE OF TENNESSEE v. WILLIAM J. CLOUSE

             Interlocutory Appeal from the Circuit Court for Van Buren County
                         No. 1611-F   J. Richard McGregor, Judge



                      No. M2000-00436-CCA-R9-CD - Filed July 11, 2001



JERRY L. SMITH, J., dissenting.

                I must respectfully dissent from the Court’s holding in this case. I would find that
any prosecution of the Defendant as an habitual motor vehicle offender would, under the
circumstances presented in this case, constitute a violation of the Defendant’s double jeopardy rights
under the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section
10 of the Tennessee Constitution.

               As noted by the majority, any analysis of a double jeopardy claim following pretrial
detention must begin with State v. Coolidge, 915 S.W.2d 820, 823 (Tenn. Crim. App. 1995),
overruled on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). In that case, this
Court held

               Certainly, both state and federal constitutional provisions protect
               against “the peril of both a second punishment and a second trial for
               the same offense.” Whitwell v. State, 520 S.W.2d 338, 341 (Tenn.
               1975); see State v. Smith 810 S.W.2d 155 (Tenn. Crim. App. 1991).
               The holding in Doe v. Norris, 751 S.W.2d 834, 839 (Tenn. 1988),
               also provided some guidance:

                       In determining whether the confinement involved ...
                       is punishment ... [c]ourts must decide whether the
                       confinement is imposed for the purpose of
                       punishment or whether it is an incident of a legitimate
                       governmental purpose. Where ... no showing of an
                       express intent to punish is made ... “that determination
                       ... turn[s] on ‘whether an alternative purpose to which
                       [the restriction] may rationally be connected is
                       assignable for it, and whether it appears excessive in
                        relation to the alternative purpose assigned.’”

                (Citation omitted).

                Interestingly, there are very few reported cases on this particular subject. The
                issue appears to be one of the first impression in this state. From those few
                sources available, it would appear that the determinative question is whether
                the pretrial detention period amounts to punishment. If so, a subsequent
                conviction violates double jeopardy safeguards; but if merely “remedial in
                nature,” a conviction and sentence are not precluded.

Coolidge, 915 S.W.2d at 823 (emphasis added). Thus, while Coolidge casts the initial burden on
a defendant to prove that the detention is punitive, that burden is not a heavy one: “[i]n other words,
the defendant must make an arguable showing that his pretrial detention qualified as punishment.
That would depend on (1) whether the detention served an alternative purpose, and (2) whether that
detention is excessive in relation to the purpose. Id. at 824.

                In this case, the majority opinion recognizes that the policy in Van Buren County is
inexplicable. However, it goes on to find that the Defendant’s claim is without merit because (1)
the policy in Van Buren County does not automatically result in unlawful pretrial detention because
it merely states that a General Sessions Judge, not a Commissioner, must set bond, and (2) in any
event, the policy is rationally connected to the purpose of ensuring the Defendant’s presence at trial
because, by their very nature, Motor Vehicle Habitual Offenders have shown disrespect for the laws
of this state.

                I think this misses the point. “Whether the detention was precluded upon double
jeopardy principles must be assessed on a case-by-case basis.” Id. at 824. In other words, it makes
no difference whether the policy always results in pretrial detention because it did so in this case.
Furthermore, “[u]nless the restriction is related to a legitimate goal, courts may infer that its purpose
is punitive.” Id. at 823. Thus, the very existence of such a policy, without any plausible explanation,
allows this Court to infer that it is punitive in nature. The majority opinion notes that no explanation
was given, yet it sua sponte assigns one found in the language of the Motor Vehicle Offenders Act
at Tennessee Code Annotated Section 55-10-602 (2) (1998), to wit: defendants “who . . . have
demonstrated their disrespect for the laws of this state” may be subjected to disparate bail treatment.
I submit this characterization also applies to many other criminal defendants who make bond
immediately before a judicial commissioner. Perhaps the majority means that these are “habitual”
offenders, who have shown more disrespect for the laws than others, but the Court makes no such
holding.

                The majority also relies on State v. Pennington, 952 S.W.2d 420 (Tenn. 1997). In
that case, Justice Birch, writing for a unanimous Tennessee Supreme Court, held that the 12-hour
detention of a driver who failed to take a breathalyzer test did not bar the State’s subsequent
prosecution of him for offenses charged in the indictment, i.e., D.U.I.

                However, Pennington is distinguishable from the present case because in that case
the parties stipulated that one of the purposes of the detention policy was to keep suspected drunk
drivers off the road for a period of time after their arrest: “In other words, the policy was intended,
at least in part, to protect the public from individuals who had been arrested on suspicion of driving
under the influence. This is a remedial purpose, not a punitive one, and therefore, the defendant’s
initial appearance before the judicial commissioner does not constitute an essentially criminal
proceeding brought to ‘vindicate public justice.’” Id. at 422-23. In other words, the purpose was
legitimate. The court also noted that

               assuming solely for the sake of argument that jeopardy did attach at
               Pennington's initial appearance and that the detention could be
               construed as punishment, the punishment was for refusing to submit
               to the breathalyzer test--not for the offenses for which Pennington
               was later indicted. Under our analysis in State v. Denton, 938 S.W.2d
               373, 381 (Tenn.1996), refusal to submit to a test to determine
               blood-alcohol content, Tenn. Code Ann. § 55-10-406(a)(3), is not the
               same offense as driving under the influence, Tenn. Code Ann. §
               55-10-401, or driving on a suspended or revoked license, Tenn. Code
               Ann. § 55-50-504. The elements of the offenses are distinct from one
               another; the same evidence would not be used to prove the offenses;
               and the statutes serve different purposes.

Id. at 423

               In this case, no legitimate purpose for the pretrial detention has been articulated by
the State. The only assignable remedial purpose to Van Buren County’s policy is the one conceived
by the majority sua sponte. I do not think we can assume such a purpose on appeal, particularly in
light of Coolidge’s mandate that we infer the opposite in the absence of any evidence. 915 S.W.2d
at 823 (“Unless the restriction is related to a legitimate goal, courts may infer that its purpose is
punitive.”). Furthermore, unlike the accused in Pennington, this Defendant was ultimately indicted
for the same offense for which he was originally detained.

                  Finally, it is true that this Court in Coolidge and State v. Johnson, 980 S.W.2d 414,
420-21 (Tenn. Crim. App. 1998), has found that pretrial detention in order to assure appearance at
trial is a legitimate remedial purpose for double jeopardy analysis. However, there is no showing
in this record that the differing treatment given habitual motor vehicle offenders in Van Buren
County is for this purpose. Indeed, many such offenders such as the Defendant in this case may
actually make bail after coming before the general sessions judge. Thus, Van Buren County’s policy
cannot be said to be related to a need to assure a defendant’s presence at trial. Where as here the
delay between arrest and bail results in the incarceration of the Defendant and there is no showing
by the State of a legitimate remedial purpose for the policy that results in such a detention, I would
find that the policy is punitive in nature and that any subsequent prosecution of the Defendant under
these circumstances is barred by the double jeopardy clauses of the federal and state constitutions.

                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE
