             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                             MAY 2000 Session

                     STATE OF TENNESSEE v. LARRY E. SCALES

                          Appeal from the Circuit Court for Warren County
                              No. F-7555    Charles D. Haston, Judge



                     No. M 1998-00142-CCA-R3-CD - Filed September 15, 2000




JOE G. RILEY, J., dissenting.

        I agree with the majority’s disposition of all issues with the exception of the erroneous jury
instruction as to range of punishment. I would find any errors relating to this jury instruction to be
harmless in this case.

       As noted by the majority, the trial court instructed the jury that the defendant “would be
sentenced to serve thirty-five percent (35%) of any sentence imposed by the court as a Range II
offender.” I agree with the majority’s conclusion that the Range II reference was erroneous;
however, I find it to be harmless in this case.

         I respectfully disagree with the majority’s conclusion that the erroneous range of punishment
instruction in this case requires reversal. In my view, State v. Cook, 816 S.W.2d 322 (Tenn. 1991),
is distinguishable.1 In Cook, the jury was instructed under the 1982 Sentencing Act only as to Range
I (20 to 40 years), whereas a Range II sentence (40 years to life) was mandated by statute due to the
nature of the offense. Id. at 323. Thus, the defendant had to receive a sentence that had a range that
far exceeded the maximum as charged by the trial court.

       Under the present 1989 Sentencing Act, “the actual decision whether to permit enhancement
does not occur until after conviction at the sentencing hearing.” State v. King, 973 S.W.2d 586, 590
(Tenn. 1998). Thus, the trial court could not assume in this case that the defendant would be
sentenced as an upper range offender. The trial court should have given the full range of punishment
from Range I through career offender. See id. at 590-91.



         1
           I also find State v. Meyer, 994 S.W.2d 129 (Tenn. 1999), distinguishable. There the trial court charged the
defendant would be eligible for release upon serving 5.73 years, whereas the law required service of the entire sentence
for child rap e. The min imum senten ce was 25 years.
        However, unlike Cook, the trial court charged the jury that the maximum possible sentence
was six years, which in fact is the maximum and only punishment for a career offender. Thus, the
instruction was accurate as to the maximum sentence, and, unlike Cook, the jury understood the
defendant could possibly receive a sentence of six years.

        The statute in effect at the time of this trial required the trial court to charge “possible
penalties” to “include an approximate calculation of the minimum number of years a person ... must
serve before reaching such person’s earliest release eligibility date.” Tenn. Code Ann. § 40-35-
201(b)(2)(A)(i)(1997)(emphasis added). The errors in the instruction in this case were stating the
minimum sentence was two years instead of one year,2 and giving a “thirty-five percent (35%)
service of any sentence imposed” instead of a lower amount. The trial court did specifically instruct
the jury, pursuant to the statutory requirement, that actual release was discretionary with the parole
board, and the board had the authority “to require a defendant to serve the entire sentence imposed
by the Court.” See Tenn. Code Ann. § 40-35-201(b)(2)(A)(ii)(1997). Clearly, the defendant was
not prejudiced by instructions on these higher amounts regarding the minimum sentence instead of
lower amounts since the jury would also have convicted based on an even lesser possible sentence.
As the majority noted, the defendant did not contest the 2 to 6 year range in the charge.

        A jury charge concerning the range of punishment is a statutory right and not a constitutional
one. Cook, 816 S.W.2d at 326. I would conclude this defendant, unlike Cook, suffered no prejudice
under this charge. Thus, I believe it constituted harmless error and did not constitute prejudice to
the judicial process. See State v. Winford Lee Pipkin, C.C.A. No. 01C01-9605-CR-00210, Davidson
County (Tenn. Crim. App. filed December 4, 1997, at Nashville); Tenn. R. App. P. 36(b); Tenn R.
Crim. P. 52(a).

         For these reasons, I respectfully dissent and would affirm the judgment of the trial court.


                                                                 ___________________________________
                                                                 JOE G. RILEY, JUDGE




         2
          Where the minimum punishmen t is one year, the trial c ourt also has the option o f sentencing the d efendant to
the county jail fo r “any period of time less than o ne year.” T enn. Cod e Ann. § 4 0-35-21 1(2).

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