                   IN THE COURT OF APPEALS
                            FILED
                           October 15, 1999

                          Cecil Crowson, Jr.
                         Appellate Court Clerk


                         AT KNOXVILLE




REGINA L. CABLE    )     KNOX COUNTY
                                ) 03A01-9811-CV-00375
     Plaintiff-Appellee )
                                   )
                                )
v.   )    HON. BILL SWANN,
                            )    JUDGE
                                )
CHARLES EDWARD CLEMMONS, JR. )
                    )    AFFIRMED AS MODIFIED
     Defendant-Appellant )    and REMANDED




JONATHAN A. MOFFATT OF KNOXVILLE FOR APPELLANT

THEODORE R. KERN OF KNOXVILLE FOR APPELLEE




                        O P I N I O N




                                                 Goddard, P.J.




         Appellant Charles E. Clemmons, Jr., appeals an order

entered in a hearing contending he had violated a previous no

contact order of protection entered by the Trial Court in

favor of Appellee Regina L. Cable.



                                                                 Page 1
         After an evidentiary hearing the Trial Court found

Mr. Clemmons guilty of six separate violations of the order of

protection, fined him $50 and sentenced him to 10 days in jail

for each violation.   The Trial Court also ordered that he

attend therapy sessions while incarcerated and, in addition,

counseling following release.



         Mr. Clemmons appeals raising the following issues:



I.   THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO DISMISS THE ORDER TO SHOW CAUSE PROSECUTION WHEN THE
APPELLANT WAS DENIED A HEARING ON THE ORDER TO SHOW CAUSE
WITHIN TEN (10) DAYS OF HIS ARREST AS REQUIRED BY TENNESSEE
CODE ANNOTATED SECTION 26-3-612(1).

II. THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY OF
SIX COUNTS OF CRIMINAL CONTEMPT, AND THUS SIX SEPARATE
CRIMINAL OFFENSES.

III. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO
ATTEND MANDATORY THERAPY SESSIONS WHILE INCARCERATED AND
ADDITIONAL COUNSELING SESSIONS FOLLOWING RELEASE.



         As to the first issue, it appears that on August 24,

1998, Mr. Clemmons appeared before the Circuit Court for Knox

County to respond to a motion for an order to show cause,

which was filed by Ms. Cable.   Although a hearing date of

September 17 was set forth in the motion, the hearing date was

changed to September 3 in the order appointing counsel.      Mr.

Clemmons was unable to make the $10,000 bond which was set and

remained incarcerated until September 3 when he and his

counsel appeared before the Trial Judge in accordance with a



                                                                   Page 2
notice of hearing.     Ms. Cable was not present on that day

because she had not been notified of the hearing; whereupon,

Mr. Clemmons moved for dismissal under the authority of T.C.A.

36-3-612, which provides the following:



     36-3-612. Violation of protection
order--Contempt--Hearing--Bond--Notice to protected party.--A
person arrested pursuant to this part shall be taken before a
magistrate or the court having jurisdiction in the cause
without unnecessary delay to answer a charge of contempt for
violation of the order of protection, and the court shall:

     (1) Notify the clerk of the court having jurisdiction in
the cause to set a time certain for a hearing on the alleged
violation of the order of protection within ten (10) working
days after arrest, unless extended by the court on the motion
of the arrested person;

     (2) Set a reasonable bond pending the hearing on the
alleged violation of the order of protection; and

     (3) Notify the person who has procured the order of
protection and direct the party to show cause why a contempt
order should issue.



         We will now list chronologically the pertinent

pleadings and orders necessary for disposition of the first

issue raised in this appeal:



March 29, 1998.    Petition by Regina Lynn Cable seeking order

of protection.

August 24, 1998.     “MOTION FOR AND ORDER TO SHOW CAUSE AND/OR

WRIT OF ATTACHMENT.”

August 24, 1998.     Summons for order of protection requiring

Mr. Clemmons to “appear in open court and answer the complaint.

”



                                                                  Page 3
August 24, 1998.     Order appointing counsel to represent Mr.

Clemmons and scheduling pending contempt charges for trial on

September 3, 1998.

August 24, 1998.     Order to show cause, directing Mr. Clemmons

to appear on September 17, 1998.

June 2, 1998. Ex parte order of protection.

June 11, 1998. “PROOF ORDER OF PROTECTION WITHOUT SOCIAL

CONTACT.”

September 10, 1998.     “ORDER OF PROTECTION WITHOUT SOCIAL

CONTACT UPON HEARING FOR CONTEMPT, WITH SENTENCE IMPOSED.”

            As already noted, the order appointing counsel set

the date of trial on September 3, although the order to show

cause set the trial for September 17.     In any event, a hearing

was held on September 3, which was not attended by Ms. Cable

because she had not been notified.    On this occasion Mr.

Clemmons moved that the case be dismissed because the hearing

date was beyond the 10 days provided in the Statute.

Although there is no order in the record, the motion was

presumably overruled and the case re-set for September 10, the

date on which the hearing was held.



            Our calculations show that September 3 was within

the 10 days provided in the Statute, and we are inclined to

believe that it was incumbent upon Mr. Clemmons to renew the

motion on the date of the hearing, September 10.     Moreover,

given the legislative intent of the Statute to provide

protection for spouses all as articulated in the case of Kite



                                                                    Page 4
v. Kite, an unpublished opinion of the Supreme Court filed in

Knoxville on May 19, 1997, we are persuaded that setting of

the case for a hearing within the 10-day period meets the

requirement of the Statute and satisfies the intent of the

Legislature.



         Apropos of the second issue, the statement of the

evidence shows that Ms. Cable testified as follows:



     The Appellee took the stand. Under direct examination,
the Appellee stated that the Appellant had contact with her
initially on the night of August 23, 1998 by a telephone call.
Thereafter, she traveled to his motel room at the Scottish Inn
on Callahan Road in Knox County. The Appellee then freely
accompanied the Appellant to the Red Lobster on Merchant’s
Road for dinner. The Appellee testified that the Appellant
drank large amounts of liquor and beer as the evening
progressed.

     Following the dinner at the Red Lobster, the Appellee
drove the Appellant back to his motel room on Callahan Road.
In the process of doing so, the Appellee stated that he became
angry with her because she would not agree to spend the night
with him at the motel. The Appellee stated that he grabbed
her by her hair from the passenger seat and forced her head
against the window while she was driving. She further stated
that the Appellant scratched her, pulled a knife out on her
and threatened to kill her. The Appellee testified that she
was in fear for her life from the actions of the Appellant.

     The Appellee testified that she then pulled over on the
side of the road at the highway exit and got out of the car.
The Appellant then got out of the car and proceeded to damage
her car by kicking it and stabbing it with his knife. The
Appellee stated that there was a police officer located in a
nearby gas station, but that in her fear to get away from the
Appellant, she did not seek out the aid of the officer. The
Appellee stated that she left the scene, went to her Mother’s
house and called 911.



         Mr. Clemmons insists that the acts committed were so




                                                                 Page 5
closely related as to time and place that they should be

considered as only one violation of the Trial Court’s order.



         In support of that he cites the case of Grant v.

State, 213 Tenn. 440, 374 S.W.2d 391 (1964), where an attorney

was charged with attempt of court for suborning four

defendants whom he represented to falsify their testimony.     In

holding that in fact only one offense of contempt was

committed, the Court quoted from Patmore v. State, 152 Tenn.

281, 277 S.W. 892 (1925), as follows:



“Even if it be conceded that two convictions and two
punishments may be had in any case upon separate counts, the
practice is not approved, and, certainly it must be clear that
the offenses are wholly separate and distinct. Our own cases
appear to prohibit the practice where the offenses grow out of
one transaction and involve but one criminal intent.” 152
Tenn. at 284, 277 S.W. at 893.

“The principle upon which the decisions in these cases rest is
that two or more separate offenses which are committed at the
same time and are parts of a single continuing criminal act,
inspired by the same criminal intent which is essential to
each offense, are susceptible to but one punishment.” 152
Tenn. at 286, 277 S.W. at 893.



         Continuing its analysis, the Court then stated the

following:



     No case could be found which applied the above principle
to an analogous situation. However it is significant that all
the cases found which allowed cumulative punishment, i.e.,
separate punishments for each count of contempt, were cases
where the several violations occurred at separate and distinct
times and did not occur from one single transaction as in the
present case.




                                                                    Page 6
     Despite the fact the present case does not, in all
respect, resemble the situation of the cases cited, the above
principle should be controlling here, as this situation
appears to be within the spirit of the above principle, and no
authority has been found which indicates a different result
should be reached.”



         We also believe the case of State v. Pelayo, 881

S.W.2d 7 (Tenn.Crim.App.1994), is helpful.   In that case the

defendant was charged with two counts of aggravated assault.

One count charged that the victim was stabbed on her arm in

her home and the other that she was stabbed on her leg outside

the home when she was attempting to flee.



         The jury found the defendant guilty as to both

counts, resulting in an appeal which raised the defense of

double jeopardy.   In finding in favor of the defendant, the

Court held the following (at page 12):



     We believe due to the similarity in circumstances that
this case requires the same analysis as St. Clair.1 Appellant
visited the victim with the intent to spend the night with her
as the parties had previously arranged. Upon learning the
victim would not agree to sleeping with him, appellant left
the victim’s residence, went to his automobile, and retrieved
a weapon. At that point, appellant formed the intent which he
later fulfilled to assault and attack the victim. But for the
victim’s attempted escape, the multiple stab wounds would
undoubtedly have occurred simultaneously. The fact that the
victim attempted to run and separated herself from appellant
does not divide the assault into multiple crimes. While the
assaults were separated by time and place, we believe that, as
in St. Clair, they coalesced into an “unmistakable single act,”
though separated by a few seconds and feet. Thus, we conclude
that appellant committed one offense of aggravated assault.



         We conclude that the facts of this case bring it



                                                                  Page 7
within the rationale of Grant and Pelayo, requiring us to

vacate all but one of the six separate convictions, leaving

standing as punishment a $50 fine and a 10-day incarceration.



         As to the final issue, Ms. Cable attempts to justify

the requirement for counseling on the ground that it is

appropriate punishment for civil contempt.    Moreover, it might

be true that the Trial Judge could have suspended penalties

for criminal contempt, conditioned upon Mr. Clemmons receiving

the counseling which he had ordered.    Still further, it is

true that such a requirement might be valid if the proceedings

were meted out incident to a civil contempt citation.     The

record, however, does not support a charge against Mr.

Clemmons for civil contempt.   Indeed, it is clear that the

proceeding was a prosecution for criminal contempt.

Therefore, a requirement for counseling cannot be imposed and

must be deleted from the judgment of the Trial Court.



         The order of protection speaks of “the standard of

proof for criminal contempt” and the statement of the evidence

contains the following:



                          THE HEARING

     The Appellee was present for the hearing held on
September 10, 1998. The Trial Court appointed Ms. Sabrina
McCarthy, Esquire of the Knoxville Legal Aid Society to
represent the Appellee in the prosecution of the Order to Show
Cause hearing.

    Prior to the hearing on that day, counsel for the



                                                                   Page 8
appellee stated to counsel for the appellant that six counts
of criminal contempt would be sought at the hearing. At the
beginning of the hearing, the Trial Court stated that the
Appellant was charged with six counts of criminal contempt as
set forth in the Motion for and Order to Show Cause and/or
Writ of Attachment. The Trial Court asked the Appellant
whether he desired a continuance of the hearing and the
Appellant stated that he did not.



            For the foregoing reasons the judgment of the Trial

Court, as modified, is affirmed and the cause remanded for

such further proceedings as may be necessary and collection of

costs below.    Costs of appeal, as well as costs below, are

adjudged one-half against Ms. Cable and one-half against Mr.

Clemmons.



                               _______________________________
                               Houston M. Goddard, P.J.




                                                                  Page 9
CONCUR:



________________________________
Herschel P. Franks, J.



________________________________
Charles D. Susano, Jr., J.




                                   Page 10
