           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE              FILED
                           MAY SESSION, 1996            October 18, 1996

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,         )     C.C.A. NO. 03C01-9511-CC-00352Clerk
                                                    Appellate Court
                            )
      Appellee,             )
                            )
                            )     SEVIER COUNTY
VS.                         )
                            )     HON. BEN W. HOOPER, II
JOHN WAYNE SLATE,           )     JUDGE
                            )
      Appellant.            )     (Sentencing)




FOR THE APPELLANT:                FOR THE APPELLEE:

EDWARD C. MILLER                  CHARLES W. BURSON
Public Defender                   Attorney General and Reporter
P. O. Box 416
Dandridge, TN 37725-0416          HUNT S. BROWN
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243

                                  AL SCHMUTZER, JR.
                                  District Attorney General

                                  STEVEN R. HAWKINS
                                  Assistant District Attorney
                                  Sevierville, TN 37862



OPINION FILED ________________________

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

JERRY L. SMITH, JUDGE
                                      OPINION


      Appellant John W ayne Slate appeals the judgment of the Sevier County

Criminal Court imposing a twenty-five year sentence for his second degree

murder conviction.      Appellant presents the following issues for review: (1)

whether the trial court erred in refusing to expunge his conviction for first degree

murder and (2) whether his sentence is excessive.



      After a review of the record, we affirm the judgment of the trial court with

regard to the expunction issue but remand this case for resentencing consistent

with this opinion.



                           I. FACTUAL BACKGROUND

      On August 12, 1988, a Sevier County Criminal Court jury convicted

Appellant of the first degree murder of David Jackson. Under the Tennessee

Sentencing Reform Act of 1982, Appellant received a sentence of life

imprisonment, enhanced by five years for use of a firearm in the commission of

a felony. The trial court ordered that the sentence run consecutive to a three-

year sentence for attempted jail escape. On direct appeal, this Court affirmed the

judgment of the trial court. See State v. Slate, No. 101, 1989 W L 130712, at *4

(Tenn. Crim. App. Nov. 1, 1989).           Appellant then filed a petition for post-

conviction relief. This Court again affirmed the judgment of the trial court with

regard to the firearm enhancement and the attempted jail escape conviction but

reversed     the     ju d g m e n t   of   th e   tr ia l   court   w ith   regard   to

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ßßßßßßßßßpportunity to be resentenced under the 1982 sentencing act or the

1989 sentencing act. Appellant, through counsel, chose to be resentenced under

the Tennessee Sentencing Reform Act of 1989. The trial court then sentenced

Appellant to twenty-five years in the Tennessee Department of Correction, a term

to run consecutive to his firearm enhancement and to his attempted jail escape

sentence. During this sentencing hearing, the trial court refused to expunge

Appellant’s conviction for first degree murder.



       II. EXPUNCTION OF FIRST DEGREE MURDER CONVICTION

      Appellant first alleges that the trial court erred in refusing to expunge his

conviction for first degree murder. Appellant argues that the first degree murder

conviction should have been expunged because this Court reversed the

conviction and remanded to the trial court with instructions to enter a judgment

for second degree murder.



      Tennessee’s expunction statute provides the following:

      All public records of a person who has been charged with
      a misdemeanor or a felony, and which charge has been
      dismissed, or a no true bill returned by a grand jury, or a

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      verdict of not guilty returned by a jury or a conviction which
      has by appeal been reversed, shall, upon petition by that
      person to the court having jurisdiction in such previous
      action, be removed and destroyed without cost to such
      person . . . .

Tenn. Code Ann. § 40-32-101(a)(1) (Supp. 1996) (emphasis added). In denying

Appellant’s request for expunction, the trial court offered the following rationale:

              [I]n effect, what has happened is the judgment of
      the trial court was reversed as to the conviction for first
      degree murder, and then they say the case is remanded
      for the purpose of resentencing and the entry of a
      judgment of conviction for second degree murder.
              To me, what’s basically happened would be the
      equivalent of being indicted for first degree murder, the
      jury being instructed as to second degree murder and
      possibly lesser included, other lesser included offenses,
      and the jury in fact finding second degree murder. And I
      think in that situation I don’t believe you would be entitled
      at all to have the records expunged. That’s just part of the
      process, You get indicted for a higher degree of crime and
      convicted of a lesser degree.

W e agree with the foregoing rationale.       Appellant’s second degree murder

conviction, for all intents and purposes, simply replaces his first degree murder

conviction. The expunction statute appears to provide relief only in situations

where, for the reasons stated therein, criminal charges fail to result in any

conviction. See, e.g., State v. Liddle, No. 01C01-9508-CR-00280, 1996 W L

275012, at *1 (Tenn. Crim. App. May, 24, 1996); State v. McCary, 815 S.W .2d

220, 222 (Tenn. Crim. App. 1991).        Here, Appellant’s conviction has been

reversed and reduced but not reversed and dismissed, as we believe the

expunction statute anticipates. W e know of no case supporting Appellant’s

proposition that his first degree murder conviction should be expunged because

it was ultimately reduced to second degree murder. Therefore, we conclude that

the trial court properly denied Appellant’s request for expunction.




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                                III. SENTENCING

      Appellant next alleges that his sentence is excessive. Without addressing

any of the substantive issues presented by Appellant, we turn to the sentencing

principle addressed in State v. Pearson, 858 S.W.2d 879 (Tenn. 1993).

According to Pearson,

      [I]n order to comply with the ex post facto prohibitions of
      the U.S. and Tennessee Constitutions, trial court judges
      imposing sentences after the effective date of the 1989
      statute, for crimes committed prior thereto, must calculate
      the appropriate sentence under both the 1982 statute and
      the 1989 statute, in their entirety, and then impose the
      lesser sentence of the two. The practice of commingling
      the two laws and allowing the defendant the benefit of the
      most favorable provisions of each is confusing, and, as the
      State points out, could result in the defendant receiving a
      lesser sentence than is authorized by either Act in its
      entirety. The prohibition against ex post facto laws in both
      the United States and the Tennessee Constitutions is
      satisfied by determining the appropriate sentence under
      each statute and imposing the lesser of the two
      sentences.

Id. at 884.   Here, the record reveals that the trial court failed to calculate

Appellant’s sentence under both sentencing acts. The State concedes that this

failure may require a remand. W e believe that it does.



      Accordingly, this case is remanded to the trial court for sentencing in light

of Pearson. If either party is dissatisfied with the sentence imposed by the trial

court, the dissatisfied party may appeal as of right to this Court. The judgment

of the trial court with regard to the expunction issue is affirmed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE

CONCUR:




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___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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