            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                           NOVEMBER 1998 SESSION
                                                           March 2, 1999

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,            *    C.C.A. # 01C01-9803-CR-00125

             Appellee,         *    DAVIDSON COUNTY

VS.                            *    Hon. Frank G. Clement, Jr., Judge

WILLIAM M. NEELY,              *    (DUI Fourth Offense)

             Appellant.        *


For Appellant:                      For Appellee:

Sam Wallace, Sr.                    John Knox Walkup
227 Second Avenue, North            Attorney General & Reporter
Second Floor
Nashville, TN 37201                 Timothy Behan
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    2d Floor, Cordell Hull Building
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    George Bonds
                                    Assistant District Attorney General
                                    222 Second Avenue, North
                                    Nashville, TN 37201




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The defendant, William M. Neely, was convicted of DUI, fourth

offense. The trial court imposed an eleven month, twenty-nine day sentence to be

served at one hundred percent. He presents two general issues for our review:

              (I) whether the state proved his prior DUI convictions
              sufficiently to support the enhanced sentence; and

              (II) whether the trial court erred by failing to dismiss
              the charges on the grounds of unreasonable delay.



              We affirm the judgment of the trial court.



                                            (I)

              The defendant's first complaint is that the state did not adequately

prove his prior DUI convictions. Therefore, he reasons, he cannot receive an

enhanced sentence as a repeat offender.



              A transcript of the guilt phase of the trial is not part of the record. In

the second phase, the state presented the testimony of Kevin Sanders, the deputy

court clerk, who testified that three court files contained records indicating that a

William Michael Neely, date of birth March 17, 1948, had three prior DUI convictions

entered on March 29, 1990. Sanders testified that the files established that one of

the offenses occurred on May 8, 1988, one on August 29, 1989, and one on March

4, 1989. In those proceedings, the defendant was declared a six-time DUI offender.



              Our DUI statute, of course, provides for enhanced penalties for repeat

offenders. The law in effect when the defendant committed the offense, on June

10, 1996, provided that a person who commits a third or subsequent DUI is subject

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to a "fine of not less than one thousand dollars ($1,000) nor more than five thousand

dollars ($5,000) [and confinement] for not less than one hundred twenty (120) days

nor more than eleven (11) months and twenty-nine (29) days ...." Tenn. Code Ann.

§ 55-10-403(a)(1) (amended in 1998 to make DUI fourth offense a Class E felony).



               When the defendant is charged as a repeat DUI offender, the required

procedure is as follows:

                      [A] bifurcated proceeding is mandated. The first
               phase of the proceeding addresses the issue of the guilt
               or innocence of the defendant. ... If the jury returns a
               verdict of guilty, the jury, not the trial judge, must
               determine whether the defendant is a second or
               subsequent offender beyond a reasonable doubt.

State v. Sanders, 735 S.W.2d 856, 858 (Tenn. Crim. App. 1987). A finding that the

defendant is a subsequent offender qualifies the offender for enhanced punishment

but does not constitute "a new offense." Tenn. Code Ann. § 55-10-403(a)(2). See

also State v. Ward, 810 S.W.2d 158, 159 (Tenn. Crim. App. 1991). In Ward, this

court observed that the increased punishment provisions of our DUI statute are

"analogous to the habitual criminal statutes which our courts have consistently held

do not create a new offense but only provide for an enhanced punishment." Id.



               The defendant contends that the proof was inadequate because the

state should have produced the court's minutes reflecting entry of the prior

convictions, rather than relying on the testimony of the court clerk. He cites Reed v.

State, 581 S.W.2d 145 (Tenn. Crim. App. 1978), a case in which this court

determined that the deputy clerk's testimony was insufficient to establish prior

convictions.



               In Reed, the defendant was convicted of shoplifting. At the second

phase of the trial, the state attempted to show the defendant had three prior

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convictions, thus establishing a status of repeat offender. 581 S.W.2d at 146. The

deputy clerk testified to information contained in the "court's 'yellow jackets'

concerning these prior cases." Id. at 147. Copies of the entries made on the

jackets of the files were also entered into evidence. Id. A panel of this court ruled

that the exhibits were "woefully inadequate for the purposes intended." Id. As to

the first conviction, the file jacket indicated a jury verdict of guilty; but there was

nothing on the jacket to indicate the trial judge approved the verdict or entered

judgment. The document also did not indicate when the conviction had occurred.

On the second conviction, the jacket did show the trial judge had entered judgment;

however, the date of conviction did not match the date charged in the indictment.

Due to the variances, the trial judge refused to submit this prior conviction for

consideration by the jury. See Tenn. Code Ann. § 55-10-403(g)(2)(the indictment

charging the defendant as a repeat offender must allege the date of the prior

conviction). For the third conviction, the jacket contained an entry imposing

sentence after the defendant's guilty plea. This court concluded that "this entry

cannot be afforded the dignity of a final judgment" and determined that the entry

was inadequate because it did not contain the date of disposition. Id.



              In conclusion, this court ruled as follows:

              We find that the proof in this case is totally lacking to
              establish the prior convictions as alleged in the
              indictment. For some reason not apparent in the record,
              the State did not offer to prove these alleged prior
              convictions by introducing the minutes of the court.
              Rather, the State embarked on a protracted and
              confusing course seeking to establish its case by having
              a deputy clerk of the court to testify from information
              contained on or in the court's "yellow jackets" concerning
              these prior cases.

                                             ***

                     ... The defendant, among other things, is entitled
              to be apprised of the accurate dates of the prior
              convictions which the state intends to rely on for

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              enhanced punishment purposes. Also, the state is
              obliged to prove that there was a final conviction for each
              of these prior offenses. These things were not done in
              this case.

Id. at 147, 148.



              In our view, the ruling in Reed does not apply to these circumstances.

The state may establish the prior convictions so long as the proof offered is

admissible under our Rules of Evidence. The Reed decision does not require that

the minutes of the convicting court are the only acceptable manner for establishing

the prior offenses. In State v. Woodall, where the defendant was adjudicated an

habitual offender, the supreme court held that several avenues were open to the

state when proving prior convictions. 729 S.W.2d 91, 93 (Tenn. 1987). Certified

copies of official records of convictions could be used as well as "official minutes,

testimony of police officials or court personnel." Id. In State v. Rea, 865 S.W.2d

923, 924 (Tenn. Crim. App. 1992), this court ruled the state could utilize Tenn. R.

Evid. 803(8), the hearsay exception governing admissibility of public records, as a

means of proving prior convictions.



              In this case, the deputy clerk testified without objection from the court

files that the defendant had been previously convicted of DUI on three occasions.

He also testified as to when the offenses occurred and when the convictions were

entered. In our view, this testimony is sufficient to establish the prior convictions.



                                           (II)

              The defendant also complains the trial court erred by overruling his

motion to dismiss on the grounds of unreasonable delay. The defendant filed his

motion to dismiss on September 8, 1997. However, there is no indication that the

trial court ever ruled on the motion. The defendant has neither produced an order

                                            5
denying the motion nor provided a transcript of any hearing in which the issue might

have been adjudicated in the trial court. "We [must] decide cases ... on the basis of

the record as presented to us for our consideration." Dearborne v. State, 575

S.W.2d 259, 264 (Tenn. 1978). The burden is always upon the appellant to develop

a record which conveys a fair, accurate, and complete account of those proceedings

which form the basis of the appeal. Id. Because the defendant has failed to

establish a record upon which the question can be considered, the ground has been

waived.



             Accordingly, the judgment of the trial court is affirmed.



                                         __________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



________________________________
John H. Peay, Judge



_________________________________
Jerry L. Smith, Judge




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