         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    January 9, 2001 Session

         STATE OF TENNESSEE v. JOHN EDWARD JOHNSON, JR.

                  Direct Appeal from the Criminal Court for Obion County
                          No. 0-204   William B. Acree, Jr., Judge



                    No. W2000-01986-CCA-R3-CD - Filed March 22, 2001


The defendant pled guilty to felonious possession of a handgun for an agreed sentence of one year.
The parties reserved a certified question of law; namely, whether an individual, who was previously
convicted of aggravated assault with a deadly weapon but subsequently had his full citizenship rights
restored pursuant to Tenn. Code Ann. § 40-29-101--105, can lawfully possess a handgun. We
conclude that a convicted felon, otherwise prohibited from possessing a handgun under Tenn. Code
Ann. § 39-17-1307(b)(1)(A), may lawfully possess a handgun in his residence after his “full
citizenship rights” have been restored.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                    Charge Dismissed

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., joined.
DAVID G. HAYES, J., filed a dissenting opinion.

Lance E. Webb, Union City, Tennessee, for the appellant, John Edward Johnson, Jr.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and James T. Cannon, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

         The defendant pled guilty to felonious possession of a handgun, reserving a certified question
of law pursuant to Tenn. R. Crim. P. 37(b)(2)(i). The certified question of law is as follows: “After
an individual has had his full citizenship rights restored pursuant to Tenn. Code Ann. § 40-29-101
et seq. following a conviction of aggravated assault with a deadly weapon , can he be convicted of
a violation of Tenn. Code Ann. § 39-17-1307(b)(1)(A) or is he allowed to possess a handgun?” We
conclude that once the defendant’s full citizenship rights were restored, he was lawfully entitled to
possess a handgun in his residence. Accordingly, we set aside the defendant’s conviction.1


                                                      I. FACTS

        On February 4, 2000, law enforcement officials searched the defendant’s residence pursuant
to a search warrant, and they seized marijuana, a rifle, and a handgun. It was stipulated that the
defendant was previously convicted of aggravated assault with a deadly weapon on June 30, 1989.
On May 12, 1999, the defendant secured a Certificate of Restoration of Citizenship. It was also
stipulated that the defendant possessed a handgun in his residence on February 4, 2000.


                                II. FELONIOUS WEAPON POSSESSION

        The defendant claims that he regained his constitutional right to possess a handgun within
his residence due to the restoration of his full rights of citizenship. We agree.

        The state correctly asserts that an individual convicted of a violent felony is generally
precluded from possessing handguns. Tenn. Code Ann. § 39-17-1307(b)(1)(A) provides “a person
commits an offense who possesses a handgun and [h]as been convicted of a felony involving the use
or attempted use of force, violence or a deadly weapon.” However, the code also contains provisions
allowing for a convicted felon’s “restoration of citizenship.” Tenn. Code Ann. § 40-29-105(b)(1)
(Supp. 1998) provides in pertinent part that “[a] person rendered infamous or deprived of the rights
of citizenship by the judgment of any state or federal court may have full rights of citizenship
restored” upon service or expiration of the maximum sentence imposed. (Emphasis added).

        The defendant contends that “full rights of citizenship” include the right to possess a handgun
within his residence. See Tenn. Code Ann. § 39-17-1308(a)(3)(A). The state argues that restoration
of citizenship rights does not include a convicted felon’s right to possess a handgun. The state
argues that Tenn. Code Ann. § 39-17-1308(b) bars anyone convicted of a felony involving the use
of a deadly weapon from utilizing the general defenses set forth in that statute, such as possession
of a weapon in one’s residence. However, if citizenship rights have been fully restored, it would
appear that a person would occupy the same status as ordinary citizens.

       The Tennessee Supreme Court has discussed the precise issue before this court, albeit in the
context of the right of a convicted felon to seek public records under the Public Records Act. Our
supreme court stated:



         1
          In fairness to the trial court, we note that this issue was never presented to the trial court for determination.
The defendant simply entered a gu ilty plea reserving this certified que stion. Neve rtheless, the certified question is
properly b efore this cou rt.

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        Like the vast majority of states, Tennessee does not have a civil death statute but
        rather a series of specific disability statutes. These include the loss of the right to
        vote, see Tenn. Code Ann. § 40-20-112; the loss of the right to hold public office,
        see Tenn. Code Ann. § 40-20-114; and the loss of the right to serve as a fiduciary,
        see Tenn. Code Ann. § 40-20-115. Persons convicted of certain violent criminal
        offenses are prohibited from carrying handguns. Tenn. Code Ann. § 39-17-1307(b).
        The loss of these specific rights of citizenship may be restored pursuant to a statutory
        proceeding for "restoration of citizenship" set forth in Tenn.Code Ann. §§
        40-29-101--105. See also 21A Am.Jur.2d, supra, § 1032-1033.

Cole v. Campbell, 968 S.W.2d 274, 276 (Tenn. 1998) (emphasis added). Although the state and
Judge Hayes in his dissent make a compelling argument, we believe this unambiguous statement of
the Tennessee Supreme Court is controlling.

        Tenn. Code Ann. § 40-29-105(b) provides for the restoration of “full rights of citizenship.”
(Emphasis added). At the very least, the statutes are ambiguous as to whether restoration includes
the right of a defendant to possess a handgun in his residence. However, any ambiguity in a criminal
statute must be strictly construed in favor of the defendant and against the state. State v.
Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997).

         Accordingly, we are of the opinion that the right to possess a handgun in the defendant’s
residence was included in the “full rights of citizenship” that were restored to him on May 12, 1999.
It is the responsibility of this court to interpret statutes as written, not to determine whether they are
wise or unwise. Any contrary interpretation or application should come from the Tennessee
Supreme Court or through legislation.


                                           CONCLUSION

       Based upon the foregoing, we hold that the defendant committed no criminal act pertaining
to possession of the handgun in his residence. Thus, the judgment of the trial court is reversed, and
the charge is dismissed.


                                                         ___________________________________
                                                         JOE G. RILEY, JUDGE




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