            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                         JANUARY 1998 SESSION
                                                        May 21, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 01C01-9612-CC-00534
            Appellee,            )
                                 )    MONTGOMERY COUNTY
VS.                              )
                                 )    HON. ROBERT W. WEDEMEYER,
CLEVELAND SONNY ROGERS,          )    JUDGE
                                 )
            Appellant.           )    (Aggravated Assault)



FOR THE APPELLANT:                    FOR THE APPELLEE:


MICHAEL J. LOVE                       JOHN KNOX WALKUP
215 South Second St.                  Attorney General & Reporter
Clarksville, TN 37040
   (On appeal)                        ELLEN H. POLLACK
                                      Asst. Attorney General
WADE BOBO                             450 James Robertson Pkwy.
129 South Third St.                   Nashville, TN 37243-0493
Clarksville, TN 37040
   (At trial)                         JOHN W. CARNEY
                                      District Attorney General

                                      ARTHUR BIEBER
                                      Asst. District Attorney General
                                      204 Franklin St., Suite 200
                                      Clarksville, TN 37040




OPINION FILED:____________________



REVERSED AND REMANDED


JOHN H. PEAY,
Judge
                                           OPINION



                The defendant was charged with possessing drug paraphernalia, causing

damage to the property of another, theft of goods totaling less than one hundred dollars

($100), and two counts of aggravated assault. A jury convicted him of aggravated assault

and assault, assessing fines of five thousand dollars ($5000) and two thousand five

hundred dollars ($2500), respectively. The remaining charges were dismissed. The

court below subsequently sentenced the defendant as a Range III persistent offender to

fourteen years incarceration on the aggravated assault offense and to nine months,

suspended, on the assault charge.1 The sentences were run consecutively. In this

appeal as of right, the defendant raises only one issue: whether he is entitled to a new

trial on his conviction for aggravated assault because the trial court erroneously instructed

the jury about the range of punishment applicable to this offense. Upon our review of the

record, we reverse this conviction and remand this matter for a new trial.



                A recitation of the facts underlying the offenses is not necessary to our

resolution of the issue. Suffice it to say that the defendant’s convictions arose out of a

domestic dispute.



                Eleven days prior to trial, the State filed its Notice of Sentencing Status

indicating the defendant’s sentencing status as Range III persistent offender. The

transcript of the trial indicates that the defendant’s trial attorney had received a copy of

this notice. The record does not indicate who requested that the trial court instruct the

jury about the range of punishment applicable upon conviction of the relevant charges.




        1
          The trial court also reduced the fines to two thousand five hundred dollars ($2500) and one
thou san d dolla rs ($ 100 0), re spe ctively.

                                                   2
However, the written jury charge included in the record2 contains such an instruction.

Unfortunately, it provides only the range applicable to a Range I standard offender:

significantly less than the range applicable to the defendant. Relying on our Supreme

Court’s ruling in State v. Cook, 816 S.W.2d 322 (Tenn. 1991), the defendant asserts that

he is entitled to a new trial because of this misinformation provided to the jury. We must

agree.



                 In Cook, the defendant was convicted of aggravated rape and aggravated

sexual battery. Because of the age of the victim, Range II sentencing was mandatory.

However, because the State was late in filing its notice of sentencing status, the trial court

ruled that Range I was the appropriate range. Upon motion by the defendant, the trial

court instructed the jury on the possible punishments under Range I. The defendant did

not object, and was subsequently sentenced as a Range I offender. On the State’s

appeal, this Court held that Range II sentencing was mandatory and remanded for

resentencing. Our Supreme Court subsequently granted the defendant’s appeal and

held that “T.C.A. § 40-35-201(b) gives a defendant a claimable statutory right to have the

jury know the range of punishment applicable to the charges before deciding guilt or

innocence.” 816 S.W.2d at 326. Moreover, the Court held, “To deny this defendant that

statutory right constitutes prejudice to the judicial process, rendering the error reversible

under Rule 36(b) T.R.A.P.” 816 S.W.2d at 327.



                 Cook controls the disposition of this case. Although the trial court was

aware prior to trial that the defendant’s sentencing status was Range III, it instructed the

jury as though the defendant’s status was Range I. The record does not reveal why this

occurred, but the same court subsequently sentenced the defendant as a Range III



         2
         The record of the trial does not include a verbatim transcript of the jury instructions as they
were delivered.

                                                     3
persistent offender. The defendant is entitled to a new trial.



               The State argues that the defendant waived this issue because he made

no objection at the time the erroneous instruction was given to the jury. Our rules of

procedure provide otherwise: A defendant’s failure to object to the content of a given

instruction “shall not prejudice the right of [the defendant] to assign the basis of the

objection as error in support of a motion for a new trial.” Tenn. R. Crim. P. 30(b). The

defendant raised this issue in his Amended Motion for A New Trial. Accordingly, it is

properly before this Court on appeal. See State v. Lynn, 924 S.W.2d 892, 899 (Tenn.

1996) (where defendant challenges a positive error in the jury instructions rather than an

error of omission, Rule 30 permits the issue to be raised in a motion for new trial). See

also Cook, 816 S.W.2d at 327 (“We do not hold the defendant responsible for the trial

court’s judgment that the only applicable possible sentences were Range I. . . . [D]efense

counsel would have been less than partisan if he had complained of the favorable action

of the trial judge.”)



               Reversible error having been committed below, the defendant’s conviction

for aggravated assault is reversed and this matter is remanded for a new trial.



                                                 _________________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
JERRY L. SMITH, Judge

                                            4
