             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                           NOVEMBER 1997 SESSION
                                                            January 6, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk

STATE OF TENNESSEE,                  )
                                     )
                      APPELLEE,      )
                                     )           No. 03-C-01-9701-CR-00025
                                     )
                                     )           Sullivan County
v.                                   )
                                     )           R. Jerry Beck, Judge
                                     )
                                     )           (Sentencing)
TRAVIS E. BIRCHFIELD,                )
                                     )
                   APPELLANT.        )




FOR THE APPELLANT:                        FOR THE APPELLEE:

Cary C. Taylor                            John Knox Walkup
Attorney at Law                           Attorney General & Reporter
P.O. Box 148                              500 Charlotte Avenue
Kingsport, TN 37662                       Nashville, TN 37243-0497

                                          Clinton J. Morgan
                                          Counsel for the State
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          H. Greeley Wells, Jr.
                                          District Attorney General
                                          P.O. Box 526
                                          Blountville, TN 37617-0526

                                          Joseph E. Perrin
                                          Assistant District Attorney General
                                          P.O. Box 526
                                          Blountville, TN 37617-0526




OPINION FILED:__________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    O P I N I ON


       The appellant, Travis E. Birchfield (defendant), was convicted of aggravated assault,

a Class C felony, by a jury of his peers. The trial court found the defendant was a

persistent offender and imposed a Range III sentence consisting of confinement for eleven

(11) years in the Department of Correction. In this court, the defendant presents one issue

for review. He contends the trial court committed error of prejudicial dimensions by finding

he was a persistent offender. He argues there were only four felony convictions which

could be used to determine the range in this case. In this case, five Class E felonies were

statutorily mandated as a prerequisite to classifying an accused as a persistent offender.

After a thorough review of the record, the briefs submitted by the parties, and the law

governing the issue presented for review, it is the opinion of this court that the judgment

of the trial court should be affirmed.

       The following convictions were contained in the State of Tennessee’s notice of

intent to seek enhanced punishment:


OFFENSE                   CASE NO.               COUNTY           DATE OF OFFENSE

Forgery                   11057                  Carter                6/05/93

Theft over $500           11058                  Carter                6/17/93

Forgery                   11350                  Carter               11/19/93

Forgery                   21064                  Washington            3/26/94

Forgery                   21064                  Washington            3/27/94

Forgery                   21064                  Washington            3/27/94


The parties agreed the two forgery offenses occurring on March 27, 1994, constituted but

one offense. Tenn. Code Ann. § 40-35-107(b)(4)(1997 Repl.) Defense counsel was given

time to review the state’s documentation of the Washington County convictions. Defense

counsel subsequently advised the trial court he thought there were only four prior

convictions, but he agreed there were five Class E felonies. Counsel stated: “I had him

down as four prior convictions, four felony convictions, but apparently, I have miscounted.”

       The trial court gave the defendant the opportunity to present proof to challenge the

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number of prior felony convictions which could be used to be establish the appropriate

range. Defense counsel declined the invitation. Counsel stated: “No, those [the felonies

set forth hereinabove] are correct.”

          The statements made by defense counsel were tantamount to a stipulation as to the

number of prior felonies which could be used to establish the appropriate range. The trial

court found there were five prior Class E felonies, and determined the defendant was a

persistent offender beyond a reasonable doubt. Tenn. Code Ann. § 40-35-107(c)(1997

Repl.).

          In this court, the defendant contends for the first time the three Washington County

forgery convictions, which occurred on March 26, 1994, and March 27, 1994, constituted

a single conviction within the meaning of Tenn. Code Ann. § 40-35-107(b)(5)(1997 Repl.).

The record does not support this contention.

          The statute in question states:


                 (4) Convictions for multiple felonies committed as part of a
                 single course of conduct within twenty-four (24) hours
                 constitute one (1) conviction for the purpose of determining
                 prior convictions; however, acts resulting in bodily injury or
                 threatened bodily injury to the victim or victims shall not be
                 construed to be a single course of conduct. . . .


          If the defendant was of the opinion the three forgery felonies from Washington

County constituted but one offense, the defendant should have presented evidence to

establish the times when the offenses were committed. The defendant was given the

opportunity to present evidence to support his contention. Instead, the trial court was told

by defense counsel there were in fact five felony convictions which could be used to

establish the range.

          The trial court found the defendant was a persistent offender beyond a reasonable

doubt as required by the statute. This court cannot set such a finding aside or grant a new

sentencing hearing when the record is silent regarding when the offenses occurred. In

short, there is nothing to establish that the offense of March 26, 1994, occurred within

twenty-four hours of the March 27, 1994, offenses. The fact the three offenses were

contained as separate counts in the same indictment is irrelevant to the inquiry.

          This court concludes the trial court properly found the defendant was a persistent


                                               3
offender and sentenced him accordingly.




                                ____________________________________________
                                 JOE B. JONES, PRESIDING JUDGE



CONCUR:




______________________________________
       PAUL G. SUMMERS, JUDGE




______________________________________
       CURWOOD WITT, JUDGE




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