           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                               Assigned on Briefs September 19, 2001

                    STATE OF TENNESSEE v. TOMMY G. BENHAM

                    Direct Appeal from the Criminal Court for Davidson County
                           No. 98-C-2234    J. Randall Wyatt, Jr., Judge



                        No. M2000-02357-CCA-R3-CD - Filed March 19, 2002


Jerry L. Smith, J., dissenting.

      Because I believe the majority opinion essentially reduces the requirements of Tennessee
Code Annotated section 40-35-202 (a) to a superfluity, I must respectfully dissent.

         The majority concludes that a discovery response provided by the State to a defendant
pursuant to Tennessee Rule of Criminal Procedure 16(a)(1)(B) is sufficient to shift the burden of
proof to a defendant to make further inquiry as to the State’s intentions at sentencing. 1 The majority
also would require defendants who receive such a discovery response to demonstrate prejudice as
a result of the form of the notice in order to obtain relief on appeal. In support of the former
preposition the majority relies on State v. Adams, 788 S.W.2d 557 (Tenn. 1990), and in support of
the latter State v. Debro, 787 S.W.2d 932, 934 (Tenn. Crim. App. 1989). However, in both Adams
and Debro the State filed the notice document required by section 40-35-202(a). The only question
in those cases was the adequacy of the contents of the document. Nothing in either of those cases
permits the State in its attempts to boost the defendant’s sentencing range to rely on documents other
than a section 40-35-202(a) notice, documents which themselves do not even contain all the
information specified in section 40-35-202(a).

        When the legislature enacted Tennessee Code Annotated section 40-35-202(a), it presumably
was aware of Tennessee Rule of Criminal Procedure 16(a)(1)(B). See, State v. Mixon, 983 S.W.2d
661 (Tenn. 1999) (holding that legislature is presumed to know existing law when enacting a
statute); State v. Levandowski, 955 S.W.2d 603 (Tenn. 1997) (same); Fletcher v. State, 951 S.W.2d
378 (Tenn. 1997)(same). It is apparent that body was of the opinion that a more complete picture
of a defendant’s prior criminal background than that provided by Rule 16(a)(1)(B) was necessary for
fair notice at sentencing. The burden of providing that more complete picture was placed by the
legislature on the prosecution in a criminal case. Yet the majority’s opinion reduces section 40-35-
202(a) to a superfluity when the State has complied with Rule 16(a)(1)(B). In other words,


       1
           Rule 16(a)(1)(B) requires the State upon request to furnish the defendant a copy of his prior criminal record.
compliance by the State with Rule 16(a)(1)(B) will now shift the burden to the defendant to inquire
further as to the details of the defendant’s prior record and the State’s intention at sentencing, even
though, as in the instant case, the discovery response does not fully set out all the information
required by section 40-35-202(a).

         I do not believe that the legislature intended that compliance with Rule 16(a)(1)(B) would
relieve the State of the burden of providing without request the full picture of the defendant’s prior
criminal background required by section 40-35-202(a). For this reason, I respectfully dissent and
would reverse and remand this case for re-sentencing upon the State’s compliance with section 40-
35-202(a). See, Adams, 788 S.W.2d at 559 (holding remand for re-sentencing appropriate remedy
for failure to comply with notice requirement of section 40-35-202(a)).


                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




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