                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON

               STATE OF TENNESSEE v. FREDERICK M. MAYS

                A Direct Appeal from the Criminal Court for Shelby County
                 No. JV-00052    The Honorable John P. Colton, Jr., Judge



                   No. W1999-01499-COA-R3-CO - Decided May 26, 2000


        This is a juvenile delinquency case. On September 16, 1999, approximately seven months
before the juvenile’s eighteenth birthday, a juvenile court judge confirmed the referee’s delinquency
adjudication and commitment for an indefinite time to the custody of Tennessee Department of
Children’s Services. The juvenile appealed for a de novo trial in criminal court, which was held
January 13, 1999, when the juvenile was about three and one-half months before reaching his
eighteenth birthday. The criminal court judge found that he had committed a delinquent act and
ordered that he remain in custody until he was nineteen years of age. The juvenile has appealed and
contends that the criminal court had no authority to sentence him to a determinate term, because the
sentencing date should be that of the juvenile court sentencing order.

Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Criminal Court is Affirmed

CRAWFORD , P.J., W.S., delivered the opinion of the court, in which HIGHERS , J., and FARMER , J.,
joined.

Walker Gwinn, Memphis, For Appellant

Paul G. Summers, Attorney General and Reporter, Kim R. Helper, Assistant Attorney General, For
Appellee

                                            OPINION

       Defendant, Frederick M. Mays, a minor born on April 25, 1981, appeals the decision of the

criminal court that adjudicated him delinquent and committed him to the Tennessee Department of

Children’s Services (hereinafter TDOCS), until his nineteenth birthday.

       On August 27, 1998, the juvenile court referee found that Mays committed a delinquent act

and recommended his commitment to the TDOCS for an indefinite time. The juvenile court
reconfirmed the referee’s ruling on September 16, 1998. Mays appealed1, and on January 13, 1999,

the criminal court declared Mays a delinquent and committed him to the custody of the TDOCS until

his nineteenth birthday.

       On February 3, 1999, Mays filed a motion for a new trial or alternatively to amend the

judgment. The criminal court denied the motion for a new trial, and Mays timely appealed to this

court pursuant to T.C.A. § 37-1-159(c).

       The sole issue for our review is whether the trial court properly ordered Frederick Mays to

serve a determinate sentence with the Tennessee Department of Children’s Services. The facts are

not in dispute, and we have before us only an issue of law. When the question on appeal is one of

law, our scope of review is de novo with no presumption of correctness accompanying the trial

court’s conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993);

Sims v. Stewart, 973 S.W.2d 597 (Tenn. Ct. App. 1998).

       Commitment of delinquent children to TDOCS is provided for in T.C.A. § 37-1-137 (1996)

which provides in pertinent part:

               T.C.A. § 37-1-137. Commitment of delinquent children to the
               department of children’s services.

               (a)(1)(A) An order of the juvenile court committing a delinquent child
               to the custody of the department of children’s services shall be for an
               indefinite time.

               (B) If a juvenile offender is tried and adjudicated delinquent in
               juvenile court for the offense of first degree murder, second degree
               murder, aggravated rape, aggravated sexual battery, aggravated
               robbery, especially aggravated robbery, aggravated arson, attempt to
               commit first degree murder, or violations of § 39-17-417(b), (i) or (j),


       1
         Mays erroneously appealed to the Shelby County Circuit Court. The case was transferred
to the criminal court as required by T.C.A. § 37-1-159.

                                                 -2-
               or has been previously adjudicated delinquent in three (3) felony
               offenses arising out of separate criminal episodes at least one (1) of
               which has resulted in institutional commitment to the department of
               children’s services, or is within six (6) months of the child’s
               eighteenth birthday at the time of the adjudication of the child’s
               delinquency, the commitment may be for a determinate period of
               time but in no event shall the length of the commitment be greater
               than the sentence for the adult convicted of the same crime, nor shall
               such commitment extend past the offender’s nineteenth birthday.

T.C.A. § 37-1-137(a)(1)(A) and (B) (1996) (emphasis added).

       The proof reflects, and the parties agree, that the only circumstance in the statute applicable

here is that dealing with the child’s eighteenth birthday. The parties agree that if a juvenile is

adjudicated delinquent within six months of his eighteenth birthday a determinate sentence is

appropriate. However, Mays argues that he was adjudicated delinquent by the juvenile court on

August 27, 1998, which was more than six months prior to his eighteenth birthday. Therefore, Mays

contends that the criminal court erred in sentencing him to a determinative sentence, i.e. until his

nineteenth birthday. The State argues that because the criminal court reviewed the juvenile court’s

decision de novo, the criminal court’s decision is the adjudication date. Since the criminal court’s

decision occurred on January 13, 1999, within six months of Mays’ eighteenth birthday, the State

claims that the determinative sentence was correct.

       The state is correct in arguing that the criminal court reviews the juvenile court’s

decision de novo. T.C.A. § 37-1-159 (1999 Supp.) provides in pertinent part:

               T.C.A. § 37-1-159. Appeals – (a) The juvenile court shall be a court
               of record; and any appeal from any final order or judgment in a
               delinquency proceeding, filed under this chapter, . . . may be made to
               the criminal court or court having criminal jurisdiction which shall
               hear the testimony of witnesses and try the case de novo;. . . .

T.C.A. § 37-1-159 (a) (199 Supp.).


                                                -3-
        In a trial de novo, the matter is tried anew as if no other trial had occurred.     Hohenberg

Bros. Co. v. Missouri Pac. R. Co., 586 S.W.2d 117 (Tenn. Ct. App. 1979). In Ware v. Meharry

Medical College, 898 S.W.2d 181 (Tenn. 1995), the Court held that appeals from general sessions

court to circuit court for de novo review should be treated for all purposes as if they originated in the

circuit court.

        In Roberts v. State, 212 Tenn. 25, 367 S.W.2d 480 (1963), the Tennessee Supreme Court

dealt with an appeal from general sessions court for a trial de novo in the criminal court which is

analogous to the issue in the case before us. Defendant was convicted of assault and battery in the

Madison County General Sessions Court and fined $15.00. Defendant appealed to the criminal court

where a jury again found defendant guilty and imposed a $250.00 fine. Defendant appealed to the

Tennessee Supreme court arguing that the criminal court could not levy a fine against him greater

than that imposed by the general sessions court. Id. The Supreme Court allowed the $250.00 fine

to stand and held that when a defendant perfects his appeal, the general sessions judgment is

abrogated and the case stood for trial in the criminal court de novo. Id. We see no difference in the

effect of an appeal from general sessions court for a trial de novo and the effect of an appeal from

juvenile court for a trial de novo.

        Based on the foregoing, the determinate sentence imposed against Mays should stand. Mays

was within four months of his eighteenth birthday when the criminal court adjudicated him

delinquent and, therefore, the court could impose a determinant commitment to the TDOCS.

Accordingly, the judgment of the trial court is affirmed and costs of appeal are assessed against

appellant.




                                                  -4-
-5-
