         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 21, 2001

                    STATE OF TENNESSEE v. TRACY GOBER

              Interlocutory Appeal from the Circuit Court for Bradley County
                           No. 00-185   Carroll Lee Ross, Judge



                                 No. E2001-00296-CCA-R9-CO
                                      September 18, 2001

The issue is how to compute the number of prior offenses available for consideration in determining
multiple offender status pursuant to Tennessee Code Annotated section 55-10-403(a)(3). We
conclude to compute the number of prior convictions available for consideration, the court must first
determine whether the defendant has any prior convictions occurring within ten years of the date of
the instant conviction. If so, all prior convictions shall be counted occurring within twenty years of
the date of the instant conviction provided no period greater than ten years has elapsed between any
two preceding prior convictions. An example is contained in the opinion. We reverse the trial
court’s order amending the indictment to charge third offense and reinstate the original indictment
charging ninth offense driving under the influence.

                 Tenn. R. App. P. 9; Judgment of the Circuit Court Reversed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
ALAN E. GLENN, J., joined.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Jerry
N. Estes, District Attorney General; and Joseph Victor Hoffer, Assistant District Attorney General,
for the appellant, State of Tennessee.

Jerry Hoffer, Cleveland, Tennessee, for the appellee, Tracy Gober.
                                             OPINION

                                               Facts

        On February 3, 2000, the defendant, Tracy Gober, was indicted, in Bradley County, in count
one for driving under the influence, (“DUI”). See Tenn. Code Ann. § 55-10-401. Count two of the
indictment alleged that the defendant had been previously convicted of DUI and had thus committed
a ninth DUI offense. See Tenn. Code Ann. § 55-10-403(a)(3). The indictment listed the following
eight prior convictions:
        5/23/1984      Knox County, Tennessee
        4/17/1986      Anderson County, Tennessee
        4/17/1986      Anderson County, Tennessee
        8/11/1986      Clayton County, Georgia
        6/11/1987      Cobb County, Georgia
        6/11/1987      Cobb County, Georgia
        8/06/1992      McMinn County, Tennessee
        5/14/1998      Bradley County, Tennessee

       The defendant moved to dismiss count two of the indictment. Defense counsel stated:

       When I look at the indictment, I see that Mr. Gober’s immediately preceding
       conviction is May 14, 1998. If I go ten years back there is only one other additional
       DUI, that being on August 6, 1992. So I would ask the court to dismiss the
       indictment. He is really only charged with third offense DUI, the way I have
       interpreted the statute.

The trial court agreed with the defendant’s contention and ordered the indictment amended to charge
third offense DUI. The State sought an interlocutory appeal pursuant to Rule 9, Tennessee Rules
of Appellate Procedure, which was granted. Application for permission to appeal was granted by
this court and filed March 9, 2001.
                                              Analysis

        The controlling statute is Tennessee Code Annotated section 55-10-403(a)(3), which sets
forth the appropriate method for calculating multiple DUI offenses as follows:

                For purposes of this section, a person who is convicted of a [DUI] violation
       . . . 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 [DUI] violation . . . 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,

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       then every conviction for a [DUI] violation . . . 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.

Tenn. Code Ann. § 55-10-403(a)(3) (2000).

        The defendant contends that the proper way to calculate which prior convictions should be
considered to determine multiple offender status is to determine the date of the first conviction
immediately preceding the instant conviction and count back ten years from that date. Only the
prior convictions occurring between those dates are appropriate for consideration. As applied to the
instant case, the first immediately preceding conviction occurred on May 14, 1998. The defendant
would have us go back ten years to May 14, 1988 as the cut-off point. Since there are only two prior
convictions occurring between May 14, 1998 and May 14, 1988, the defendant contends he could
only be charged with third offense DUI.

         The Tennessee Supreme Court has set forth that rules of statutory construction require effect
to be given to the legislative intent without unduly restricting or expanding the intended scope of a
statute. Seals v. State, 23 S.W.3d 272, 276 (Tenn. 2000). We should, therefore, examine the natural
and ordinary meaning of a statute’s language within the context of the entire statute without forced
or subtle construction that would extend or limit its meaning. State v. Flemming, 19 S.W.3d 195,
197 (Tenn. 2000). Statutory construction should not render portions of the statute inoperative. State
v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995). If an ambiguity is found to exist, we should look to
the entire statutory scheme in seeking to ascertain the true legislative intent. Owens v. State, 908
S.W.2d 923, 926 (Tenn. 1995).

        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.

Example One
      Defendant X’s instant conviction occurred April 1, 2001. The defendant has four
      prior DUI convictions, all occurring six years apart; April 1, 1995; April 1, 1987;
      April 1, 1981; April 1, 1975. First question. Does the defendant have a prior DUI
      conviction occurring within ten years of the instant offense? The answer is yes, April
      1, 1995. Second question. Does the defendant have a ten-year DUI conviction free
      period between any preceding prior conviction? The answer is no, all convictions are


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       six years apart. Third question. Does the defendant have any prior convictions more
       than twenty years from the instant conviction? The answer is yes, April 1, 1975.
       Therefore, the defendant may be charged with fourth offense driving under the
       influence.

Example Two
      Defendant X’s instant conviction occurred on July 1, 2001. Defendant X has two
      prior convictions occurring on July 3, 1991 and July 3, 1981. Defendant X has a
      prior conviction within ten years of his/her instant conviction, July 3, 1991. Exactly
      ten years prior to July 3, 1991 and just days shy of twenty years prior to the instant
      conviction, defendant had another prior conviction on July 3, 1981. Defendant X
      should be charged with third offense driving under the influence.

        This defendant’s argument directly contradicts the existence of the twenty-year limit
contained in the statue. Hence, rendering the twenty-year limit inapplicable. We agree with the
State that as long as this matter is concluded on or before May 22, 2004 -- twenty years from the
oldest prior conviction – none of the defendant’s convictions are excluded from consideration for
enhanced punishment. Applying our analysis to the instant case, we first assume that the defendant’s
instant conviction occurs on or before May 22, 2004. This defendant had a prior conviction for DUI
on May 14, 1998, which is within ten years of the instant conviction. Furthermore, there is no
period greater than ten years between any of the defendant’s prior preceding convictions. Therefore,
all convictions occurring within twenty years from the date of the instant conviction may be
considered in determining the defendant’s multiple offense status. Count two of the indictment
charging this defendant with ninth offense driving under the influence is correct.

                                           Conclusion

       We conclude the trial court erred in amending the indictment to charge third offense driving
under the influence and we reinstate the original indictment charging the defendant with ninth
offense driving under the influence.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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