     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT JACKSON

                     JUNE 1998 SESSION         FILED
                                                 June 17, 1998

                                              Cecil Crowson, Jr.
                                               Appellate C ourt Clerk
STATE OF TENNESSEE,         )
                            ) C.C.A. No. 02C01-9802-CC-00050
     Appellee,              )
                            ) McNairy County
V.                          )
                            ) Honorable Jon Kerry Blackwood, Judge
                            )
TERRON PAUL BORDEN,         ) (Violation of HMVO Order)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

Lloyd R. Tatum                 John Knox Walkup
Tatum, Tatum & Weinman         Attorney General & Reporter
Attorneys at Law
124 E. Main Street             Peter M. Coughlan
P.O. Box 293                   Assistant Attorney General
Henderson, TN 38340            425 Fifth Avenue North
                               2d Floor, Cordell Hull Building
                               Nashville, TN 37243-0493

                               Elizabeth T. Rice
                               District Attorney General

                               Ed Neal McDaniel
                               Assistant District Attorney General
                               302 Market Street
                               Somerville, TN 38068



OPINION FILED: ___________________


REVERSED AND DISMISSED


PAUL G. SUMMERS,
Judge




                           OPINION
      The appellant, Terron Paul Borden, was arrested on February 28, 1997, in

McNairy County for driving on a revoked license, speeding, and violation of the

Motor Vehicle Habitual Offenders Act (HMVO). He retained a lawyer. Counsel

appeared with him in the McNairy County General Sessions Court on April 18,

1997. Plea negotiations ensued. The appellant entered a guilty plea to driving

on a revoked license. He waived his right to a preliminary hearing on the HMVO

charge. A true bill of indictment was returned by the McNairy County Grand Jury

on the HMVO charge on June 9, 1997.



      The appellant filed a motion to dismiss in the McNairy County Circuit

Court based on double jeopardy provisions. The trial court denied the motion to

dismiss. After plea negotiations concluded, the appellant entered a guilty plea

to the HMVO violation but reserved the right to appeal a certified question of law

pursuant to Rule 37(b) of the Tennessee Rules of Criminal Procedure. The

appellant perfected his appeal to this Court.



      The issue before this Court is simple. Under the provisions of State v.

Green, 947 S.W.2d 186 (Tenn. Crim. App. 1997), can the appellant be convicted

of both driving on a revoked license and a violation under HMVO? We conclude

that he cannot be convicted of both crimes.



      In Green, this Court found that driving on a revoked license is not a lesser

included offense of violating the habitual motor vehicle law. We further found

that under the provisions of Duchac v. State, 505 S.W.2d 237 (Tenn. 1973),

these two offenses are the “same” for double jeopardy purposes under the

Tennessee Constitution. The Court found that under the principles enunciated in

State v. Denton, 938 S.W.2d 373 (Tenn. 1996), double jeopardy principles were


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violated; and a defendant could not be convicted of both driving on a revoked

license and a violation of HMVO.



      The Attorney General concedes this issue. The state agrees that

convicting this appellant of both crimes violates double jeopardy provisions.



      The judgment of conviction of violation as a habitual offender under the

Motor Vehicle Habitual Offenders Act (HMVO) is reversed, and the indictment is

dismissed.




                                              __________________________
                                              PAUL G. SUMMERS, Judge


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CONCUR:




_____________________________
DAVID H. WELLES, Judge




_____________________________
JOE G. RILEY, Judge




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