         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 12, 2000 Session

                  STATE OF TENNESSEE v. BILLY THOMPSON

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 98-06377-78 James C. Beasley, Jr., Judge



                  No. W1999-01001-CCA-R3-CD - Filed December 15, 2000


In 1995, Billy Thompson, a Mississippi resident, was convicted in Shelby County of driving under
the influence, resulting in suspension of his driving privileges in this state for one year. Fifteen
months later, Thompson was again charged and convicted of driving under the influence, sixth
offense, reckless driving and driving while revoked, being the instant offenses before this court. On
the date of the latter offenses, Thompson possessed a valid Mississippi driver’s license, however,
he had not complied with the statutory requirements for reinstatement of his driving privileges in this
state. Thompson appeals his convictions contending the trial court erred (1) by failing to sever the
charge of driving while license revoked from the remaining counts and (2) by failing to grant his
motion for judgment of acquittal as to the charge of driving while license revoked. We conclude that
all charges were properly joined pursuant to Tenn. R. Crim. P. 8(a). Moreover, we hold that a
nonresident motorist, although possessing a valid out-of-state license, may not operate a motor
vehicle in this state following this state’s revocation of his driving privileges until the motorist
complies with Tennessee’s reinstatement procedures. Because we find the proof sufficient to
support the challenged conviction, the judgment of the trial court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODALL , J., joined.

James D. Franks, Hernando, Mississippi, and S. Ronald Lucchesi, Memphis, Tennessee, for the
Appellant, Billy Thompson.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, J. Ross Dyer,
Assistant Attorney General, Wlliam L. Gibbons, District Attorney General, and Paula Wulff and
Reginald Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.
                                             OPINION

        The Appellant, Billy Thompson, was convicted by a Shelby County jury of driving while
license revoked (DWLR), driving under the influence, sixth offense, and reckless driving. The trial
court imposed respective sentences of eleven months, twenty-nine days for driving under the
influence, six months for reckless driving, and a five hundred dollar fine for DWLR. The sentences
for driving under the influence and reckless driving were ordered to be served consecutively. In this
appeal as of right, the Appellant raises two issues for this court’s review:

       I. Whether the trial court’s denial of the Appellant’s motion to sever the charge of
       driving on a revoked license from the charges of driving under the influence and
       reckless driving was error; and

       II. Whether, as a matter of law, the Appellant’s driving privileges in the State of
       Tennessee were automatically reinstated as evidenced by his procurement of a valid
       Mississippi license after the expiration of the one-year Tennessee revocation period.

       After review, we affirm.



                                            Background

        Shortly before noon on July 8, 1997, Memphis Police Officer Dorothy Hyman was on patrol
on Interstate 55 “running radar” on northbound traffic. Officer Hyman was approached by a motorist
who informed her that “there was a truck traveling southbound on 55 running off the road. . . .”
Officer Hyman, soon thereafter, observed “a tan and brown looking truck coming southbound; and
he was all over the road. And there was traffic backed up behind him so badly and cars were trying
to get around him.” “[T]here was [sic] people running off the road trying to avoid being hit by this
vehicle that was all over the road.”

         After a short pursuit, Officer Hyman stopped the vehicle. Upon approaching the driver’s side
of the truck, Officer Hyman immediately noticed a strong odor of alcohol emanating from the driver,
subsequently identified as the Appellant. Two bottles of alcohol were discovered in the truck.
Additionally, both the Appellant’s physical appearance and his behavior indicated that the Appellant
was under the influence of an intoxicant. A DUI unit was dispatched to the scene. The Appellant
refused to submit to both a field sobriety test and a breathalyzer test.

        The Appellant, a Mississippi resident, was in possession of a valid Mississippi license, which
had been issued only several hours before his arrest. At the time of his arrest, his Tennessee driving
privilege was suspended, effective March 23, 1995. Following a jury trial, the Appellant was found
guilty of driving under the influence, sixth offense, reckless driving, and driving while revoked.


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                                            I. Severance

        On May 20, 1998, the Shelby County Grand Jury returned two indictments against the
Appellant. The Appellant was charged in one indictment with one count of driving while license
revoked; the remaining indictment charged the Appellant with one count of driving under the
influence, sixth offense, and one count of reckless driving. Apparently, the two indictments were
joined pursuant to Tenn. R. Crim. P. 8(a). Prior to trial, the Appellant moved to sever the charge of
driving while license revoked from the charges of driving under the influence and reckless driving
due to the prejudicial impact of the “pre-textual charge of driving while license suspended.” The
trial court denied the motion.

        The Appellant now contests this ruling, relying solely upon this court’s holding in State v.
Fleece, 925 S.W.2d 558 (Tenn. Crim. App. 1995). We do not find this court’s prior holding
dispositive of the issue sub judice. In Fleece, the defendant was charged with driving under the
influence and reckless driving; he was not charged with driving on a restricted license. A panel of
this court held that evidence of the defendant’s restricted license before the jury was error under
Tenn. R. Evid. 404(b). Fleece, 925 S.W.2d at 561. This is not the issue presently before this panel.

        On appellate review, this court will not reverse a trial court’s decision concerning permissive
joinder and severance of offenses pursuant to Tenn. R. Crim. P. 8 and 14 absent an abuse of the trial
court’s discretion. See Spicer v. State, 12 S.W.3d 438, 442-443 (Tenn. 2000) (citing State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Accordingly, this court will not interfere with a trial
court’s ruling unless the “court applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.” Id. (citations omitted).

       The indictments in the present case were joined pursuant to Tenn. R. Crim. P. 8(a), requiring
mandatory joinder of offenses where the offenses are based upon the same conduct or arise from the
same criminal episode. Notwithstanding mandatory joinder, the trial court retains discretion to grant
a severance of the offenses under some circumstances. See Shirley, 6 S.W.3d at 246, n.3. Rule
14(b)(2) provides for severance of charges joined under Tenn. R. Crim. P. 8(a):

       (i) If before trial on motion of the state or the defendant it is deemed appropriate to
       promote a fair determination of the defendant’s guilt or innocence of each offense.

       (ii) If during trial with consent of the defendant it is deemed necessary to achieve a
       fair determination of the defendant’s guilt or innocence of each offense. The court
       shall consider whether, in light of the number of offenses charged and the complexity
       of the evidence to be offered, the trier of fact will be able to distinguish the evidence
       and apply the law intelligently as to each offense.

       (iii) If the Court finds merit in both a motion by the district attorney general for a
       continuance based upon exigent circumstances that temporarily prevent the state


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       from being ready for trial of the joined prosecutions and an objection by the
       defendant to the continuance based on a demand for speedy trial. . . .

Tenn. R. Crim. P. 14(b)(2). The trial court’s refusal to grant a severance under Tenn. R. Crim. P.
14(b)(2) will not be reversed unless the Appellant was prejudiced by the decision to try the charges
together. State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982). We conclude from the
evidence contained in the record that the Appellant suffered no prejudice from the joinder of the
offenses. Accordingly, we find that the trial court did not abuse its discretion in denying severance
of the offenses. This issue is without merit.

                       II. Revocation of Non-Resident Driving Privileges

        There is no dispute that, effective March 23, 1995, the State of Tennessee revoked the
Appellant’s privilege to drive a motor vehicle upon the highways of this state for a period of one
year. At this time, the appellant was a Mississippi resident and possessed a Mississippi driver’s
license. The revocation period in Tennessee expired on March 23, 1996. On July 8, 1997, the
Appellant obtained a valid driver’s license from the State of Mississippi, his state of residency. The
Appellant’s arrest on the instant offenses occurred on July 8, 1997, one year, three months and ten
days after the expiration of his revocation period.

         At the conclusion of the State’s proof on this charge, the Appellant moved for a judgment
of acquittal as to this count. The trial court denied the motion and, subsequently, the jury returned
a guilty verdict as to the charge of driving while license revoked. The Appellant now contends that
the trial court erred in denying his motion for judgment of acquittal as to this count. Specifically,
he asserts that the revocation period expired on March 23, 1996, and he had obtained a valid
Mississippi driver’s license on July 8, 1997. Accordingly, he argues his Tennessee driving
privileges had been automatically reinstated at the expiration of the revocation period. The State
responds that a nonresident’s driving privilege is not automatically reinstated in this State at the
expiration of the revocation period or upon issuance of a valid driver license from his home state.
Rather, the nonresident driver must satisfy certain reinstatement procedures before his driving
privileges in this state may be reinstated. In rebuttal, the Appellant asserts that, if any affirmative
acts are required by a nonresident prior to reinstatement of Tennessee driving privileges, “there
exists no case law, no statutory law, and no published guidelines from the State of Tennessee
advising anyone who is a non-resident of the State of Tennessee that they must perform any acts in
order to reinstate their Tennessee driving privileges.”

        The standard by which the trial court determines a motion for judgment of acquittal at the
end of all the proof is, in essence, the same standard which applies on appeal in determining the
sufficiency of the evidence after a conviction; that is, whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." State v. Gillon, 15 S.W.3d
492, 496 (Tenn. Crim. App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781
(1979)). After a conviction, the State is entitled to the strongest legitimate view of the evidence and


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any reasonable inferences which might be drawn therefrom. Id. (citing State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978)).

        A motion for judgment of acquittal presents a question of law. Gillon, 15 S.W.3d at 496
(citing State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983)). The trial judge is concerned only
with the "legal sufficiency of the evidence and not with the weight of the evidence." Id. (citations
omitted). The evidence must be viewed in the light most favorable to the State. Id. "An appellate
court must apply the same standard as a trial court when resolving issues predicated upon the grant
or denial of a motion for judgment of acquittal." Id.

         A person who drives a motor vehicle on any public highway of this state at a time
         when the person’s privilege to do so is cancelled, suspended, or revoked commits a
         Class B misdemeanor. A person who drives a motor vehicle on any public highway
         of this state at a time when the person’s privilege to do so is cancelled, suspended or
         revoked because of a conviction for . . . driving while intoxicated, shall be punished
         by confinement for not less than two (2) days nor more than six (6) months, and there
         may be imposed, in addition, a fine of not more than one thousand dollars ($1,000).

TENN. CODE ANN. § 55-50-504(a)(1) (Supp. 1997). There is no dispute that the Appellant was
operating a motor vehicle on the public highways of this state. The only question is whether the
Appellant’s driving privileges were suspended at the time of the incident.

         The ability to drive a motor vehicle on a public highway is not a fundamental "right." State
v. Booher, 978 S.W.2d 953, 956 (Tenn. Crim. App. 1997) (citing Goats v. State, 211 Tenn. 249, 364
S.W.2d 889, 891 (Tenn. 1963); Sullins v. Butler, 175 Tenn. 468, 135 S.W.2d 930, 932 (Tenn. 1940)
(citations omitted)). Instead, it is a revocable "privilege" that is granted upon compliance with
statutory licensing procedures. Booher, 978 S.W.2d at 956 (citing Reitz v. Mealey, 314 U.S. 33, 36,
62 S. Ct. 24, 26-27 (1941), overruled in part by, Perez v. Campbell, 402 U.S. 637, 91 S. Ct. 1704
(1971); Goats, 364 S.W.2d at 891; Sullins, 135 S.W.2d at 932). Generally, a nonresident of the
State of Tennessee who possesses a valid driver license from his home state has the privilege to drive
on Tennessee highways and is exempt from Tennessee licensing provisions. See TENN. CODE ANN.
§ 55-50-304(3), (4) (Supp. 1997). See also Tenn. Op. Atty. Gen. No. 83-411 (Sept. 15, 1983). The
privilege of driving on Tennessee highways is not absolute; rather, just as a resident’s license to
drive a motor vehicle in the State of Tennessee may be revoked, a nonresident’s privilege to drive
in this state may likewise be revoked.1 See generally TENN. CODE ANN. § 55-50-502(d)(2) (Supp.
1997). Additionally, just as a resident’s license is not automatically restored at the expiration of the
revocation period, see generally TENN. CODE ANN. § 55-50-502, the suspension of a nonresident’s
privilege to operate a motor vehicle on the highways of this state “does not automatically spring to
life at the end of the period of ineligibility, as if the order never had been entered. . . .” See

         1
           The authority of this state over a nonresident is limited to the driver’s privilege to operate a motor vehicle on
the public highways of this state. Obviously, no administrative agency nor court of this state has the authority to prevent
a nonresident from operating a motor vehicle in his home state or any other state.

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Colorado Dept. of Revenue, Motor Vehicle Div. v. Smith, 640 P.2d 1143, 1145 (Colo. 1982) (en
banc) (quoting People v. Lessar, 629 P.2d 577 (Colo. 1981)); see also State v. Banicki, 933 P.2d
571, 573 (Ariz. App. 1997) (driving privileges not automatically restored). The completion of the
period of revocation merely makes the nonresident driver eligible for reinstatement of his Tennessee
driving privileges. See TENN. CODE ANN. § 55-50-502(d)(1); -(e)(3); see also Tenn. Op. Atty. Gen.
No. 86-097 (May 19, 1986) (“[o]nce a license or driving privileges have been suspended under this
chapter, the motorist may restore his privileges by satisfying certain requirements which usually
include the payment of a restoration fee.”). Indeed, while a nonresident holding a valid out-of-state
driver license need not obtain a valid Tennessee driver license to comply with reinstatement
requirements following a suspension, he is obligated to “make application . . . as provided by law,
but the department shall not issue a new license unless and until it is satisfied after investigation of
the character, habits and driving ability of such person that it will be safe to grant the privilege of
driving a motor vehicle on the public highways.” See TENN. CODE ANN. § 55-50-502(e)(3).
Additionally, our law provides:

        (b)(1) In addition to all other requirements of law, prior to reinstating the driving
        privileges and/or reissuing a driver license to any person who has been convicted of
        the offense of driving while under the influence, the department shall require
        certification that all fines and costs have been paid to the court of jurisdiction.
        Such certification shall be made upon a form supplied by the department and shall
        indicate the fines and costs levied by the court, that all fines and costs have been paid
        to the court, or that the fines and/or costs were waived as a result of the person being
        found to be indigent by the court, if such court is located within this state. The form
        shall be completed and certified by the clerk of the court of jurisdiction; however, it
        is the sole responsibility of the individual seeking reinstatement or reissuance
        to obtain the certification and present it to the department.

        (b)(2) Persons convicted of any other offense requiring mandatory revocation of
        driving privileges shall be required to present the same certification in subdivision
        (b)(1) prior to reinstatement of driving privileges and/or the reissuance of a driver
        license.

TENN. CODE ANN. § 55-50-303(b) (Supp. 1997)(emphasis added).

        Under Tennessee’s statutory requirements, a nonresident whose Tennessee privilege to drive
has been suspended is not extended the privilege to drive in Tennessee until the period of suspension
has expired and the nonresident has complied with the reinstatement procedures even though he is
in possession of a valid driver license issued by his state of residence. There is no proof that the
Appellant complied with the reinstatement procedures. Indeed, the proof introduced revealed that
the Appellant’s driving privilege in this state was suspended. Absent proof of compliance with
reinstatement procedures, the evidence is sufficient to support a conviction for driving while license
revoked. Accordingly, we conclude that the trial court properly denied the Appellant’s motion for
judgment of acquittal.

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After review of the record, we affirm the judgments of conviction entered by the trial court.




                                               ___________________________________
                                               DAVID G. HAYES, JUDGE




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