          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE               FILED
                            MAY 1997 SESSION
                                                             June 30, 1997

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk

STATE OF TENNESSEE,                )
                                   ) C.C.A. No. 01C01-9608-CR-00330
      Appellee,                    )
                                   ) Davidson County
V.                                 )
                                   ) Honorable J. Randall Wyatt, Jr., Judge
                                   )
JAMES HOLLOWAY,                    ) (Second Degree Murder)
                                   )
      Appellant.                   )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Karl Dean                             Charles W. Burson
District Public Defender              Attorney General & Reporter

Jeffrey A. Devasher                   Sarah M. Branch
Senior Assistant Public Defender      Counsel for the State
                                      450 James Robertson Parkway
Wendy S. Tucker                       Nashville, TN 37243
Assistant Public Defender
1202 Stahlman Building                Victor S. (Torry) Johnson III
Nashville, TN 37201                   District Attorney General

                                      D. Paul DeWitt
                                      Assistant District Attorney General
                                      Suite 500, Washington Square
                                      222-2nd Avenue North
                                      Nashville, TN 37201-1649




OPINION FILED: ___________________


REVERSED AND REMANDED AS TO SENTENCE


PAUL G. SUMMERS,
Judge




                                   OPINION
        The appellant, James Holloway, pled guilty to second degree murder. He

was sentenced to twenty-three years incarceration. He appeals alleging the trial

court erred in imposing an excessive sentence. Upon review, we respectfully

reverse the trial court and remand for a new sentencing hearing.



        The record reveals that the appellant was classified as a Range I,

standard offender. The trial judge found one applicable enhancement factor

and one applicable mitigator.1 He stated that Tenn. Code Ann. § 40-35-210(c),

which became effective July 1, 1995, required that the midpoint within the range

be applied as the presumptive sentence for the appellant's offense.2 The

appellant contends that this statute was not in effect at the time he committed

the offense and its use against him violates his constitutional protection against

the imposition of ex post facto laws. We agree.



        The Tennessee Constitution's ex post facto prohibition found in Article I, §

11, provides:

                                               That
                                               laws
                                               mad
                                               e for
                                               the
                                               puni
                                               shm
                                               ent
                                               of
                                               acts
                                               com
                                               mitte
                                               d
                                               previ
                                               ous
                                               to
                                               the
                                               exist
                                               ence
                                               of

        1
         The trial judge enhanced the appellant's sentence based on the fact that he employed a
firearm during the commission of the offense. Tenn. Code Ann. § 40-35-114(9). Apparently, he
mitigated the offense based upon the appellant's age. Tenn. Code Ann. § 40-35-113(6). The
appellant does not contest the use of the enhancem ent factor found by the trial court.

        2
         The appellant pled guilty to second degree murder, a Class A felony. The range of
punishm ent for a Range I, standard offender comm itting a Class A felony is 15 to 25 years.

                                                 -2-
                                        such
                                        laws
                                        , and
                                        by
                                        them
                                        only
                                        decl
                                        ared
                                        crimi
                                        nal
                                        are
                                        contr
                                        ary
                                        to
                                        the
                                        princ
                                        iples
                                        of a
                                        free
                                        Gov
                                        ern
                                        ment
                                        ;
                                        wher
                                        efor
                                        e no
                                        Ex
                                        post
                                        facto
                                        law
                                        shall
                                        be
                                        mad
                                        e.

The five classifications of ex post facto law are:

       1. Laws which provide for punishment upon a person for an act
       done which, when committed, was innocent;

       2. Laws which aggravate a crime or make it greater than when
       committed;

       3. Laws that change punishment or inflict greater punishment than
       the law annexed to the crime when committed;

       4. Laws that change the rules of evidence and receive less or
       different testimony than was required at the time of the commission
       of the offense in order to sustain a conviction; and

       5. Laws which, in relation to the offense or its consequences, alter
       a person's situation to their disadvantage.

State v. Pearson, 858 S.W.2d 879, 882 (Tenn. 1993).



       The appellant committed this offense on March 31, 1995. At that time,

the applicable statute provided: "[s]hould there be enhancement and mitigating

                                         -3-
factors, then the court must start at the minimum sentence in the range . . . ."

Tenn. Code Ann. § 40-35-210(e) (1990). The trial judge, however, applied the

amendment to this statute, which did not become effective until July 1, 1995.

The amendment states that the presumptive sentence for the appellant's offense

shall be the midpoint in the range. This statute was not in effect when the

appellant committed the offense; hence, its implementation effectively raised the

presumptive starting point from fifteen years to twenty years. In applying this

statute to the appellant, the trial court violated the ex post facto prohibition.



        We respectfully reverse and remand to the trial court for a new sentencing

hearing using the presumptive starting point of fifteen years.3



REVERSED AND REMANDED AS TO SENTENCE.




                                                 _______________________________
                                                 PAUL G. SUMMERS, Judge

CONCUR:




______________________________
DAVID G. HAYES, Judge




______________________________
JERRY L. SMITH, Judge




        3
           W e are mindful of appellant’s arguments regarding other mitigating factors not recognized at
the original hearing. Because of the ordered new sentencing, we choose not to address those issues
at this time.

                                                  -4-
