        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 11, 2007

                    STATE OF TENNESSEE v. LEODISH COE

                 Direct Appeal from the Criminal Court for Shelby County
                          No. 05-06025     Paula Skahan, Judge



                  No. W2006-02481-CCA-R3-CD - Filed December 5, 2007


The defendant, Leodish Coe, pled guilty to fourth offense driving under the influence (DUI) and
reserved a certified question of law. The question presented for review is whether the indictment
properly charged a fourth offense DUI and whether the defendant’s present offense constitutes a
fourth offense DUI under Tennessee Code Annotated section 55-10-403. After review, we conclude
the answer to both questions is affirmative and affirm the judgment from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

Joseph S. Ozment and Larry Copeland, Memphis, Tennessee, for the appellant, Leodish Coe.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Walter C. Scruggs and Kirby May, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

       The defendant pled guilty to the instant offense on November 8, 2006, and the indictment
alleged previous DUI convictions on September 8, 2000; April 4, 1991; and October 5, 1989.
Tennessee Code Annotated section 55-10-403(a)(3) sets forth the appropriate method for calculating
multiple DUI offenses as follows:
       For purposes of this section, a person who is convicted of a violation of § 55-10-401
       shall not be considered a repeat or multiple offender and subject to the penalties
       prescribed in subsection (a), if ten (10) or more years have elapsed between such
       conviction and any immediately preceding conviction for a violation. If, however,
       a person has been convicted of a violation of § 55-10-401 within ten (10) years of the
       present violation, then such person shall be considered a multiple offender and is
       subject to the penalties imposed upon multiple offenders by the provisions of
       subsection (a). If a person is considered a multiple offender under this subdivision
       (a)(3), then every conviction for a violation of § 55-10-401, within ten (10) years of
       the immediately preceding violation shall be considered in determining the number
       of prior offenses, but in no event shall a conviction for a violation occurring more
       than twenty (20) years from the date of the instant conviction be considered for such
       purpose.

       The defendant argues that the correct interpretation of Tennessee Code Annotated section
55-10-403(a)(3) would place his conviction date on November 8, 2006. As a result, his
“immediately preceding” conviction date would be September 8, 2000 and April 4, 1991, because
both occurred within ten years of the November 8, 2006 conviction. Since the October 5, 1989
conviction did not occur within ten years of the November 8, 2006 conviction, it cannot be
considered in determining that the defendant is a multiple offender. Therefore, the defendant should
only be guilty of a third offense DUI, not a fourth offense.

        The State and the trial court rely upon the guidance set forth in State v. Tracy Gober, No
E2001-00296-CCA-R9-CO, 2001 Tenn. Crim. App. LEXIS 750, at * 6 (Tenn. Crim. App. Sept. 18,
2001), to which the defendant responds that this case was incorrectly decided.

        We conclude the logic and reasoning in Gober is sound and helpful in deciding how to
calculate multiple offender status.
        As we review the plain language of the statute and the legislative history, it is clear
        that whenever an offender maintains a ten-year DUI conviction free period, the state
        is barred from using any prior convictions beyond that period for purposes of
        enhanced punishment. This ten-year DUI conviction free period is important in two
        ways. First, in order to be considered as a multiple offender one must have a prior
        DUI conviction occurring within ten years from the date of the instant conviction.
        Second, if at any time a ten-year DUI conviction free period exists between preceding
        prior convictions, the State is barred from using any prior conviction beyond that ten-
        year period for the purposes of enhanced punishment[.] We should be clear,
        however, that in no event may a prior conviction be used for the purpose of enhanced
        punishment if it occurred more than twenty years before the date of the instant
        conviction.
Id. at *6-7.

       If we were to accept the defendant’s argument, ten years would be the maximum time used
in calculating how many prior offenses could be used to enhance one sentence. The statute,
however, clearly sets the maximum time limit at twenty years, not ten years, as was correctly stated
in Gober. In order for the ten-year bar to trigger and remove prior offenses from consideration for
enhancement, the defendant has to be conviction free for ten years. In the instant case, the longest
period between the defendant’s convictions is nine years. None of the convictions used against the
defendant occurred more than twenty years from the date of the instant conviction, and all were
properly considered for enhancement.


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         Based on the foregoing and the record as a whole, we affirm the judgment from the trial
court.



                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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