         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   August 5, 2003 Session

                  JASON REAVES v. STATE OF TENNESSEE
                  Direct Appeal from the Criminal Court for Shelby County
                          No. GS-01000    Arthur T. Bennett, Judge



                 No. W2002-02540-CCA-R3-CD - Filed September 12, 2003


The Defendant was convicted in general sessions court of Driving While Under the Influence and
“Refusal to Submit.” He appealed his convictions and sentences to the Criminal Court for Shelby
County. The Defendant failed to appear for his initial court hearing in criminal court, and a capias
was issued for his arrest. The Defendant was arrested on the capias, posted bond, and subsequently
appeared one hour late for a hearing in criminal court. The criminal court dismissed the appeal and
remanded the case to general sessions court for the execution of the original judgments. This appeal
ensued, in which the Defendant argues (and the State concedes) that the criminal court erred by
dismissing the appeal and remanding the case to general sessions court. We agree and reverse the
judgment of the criminal court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
NORMA MCGEE OGLE , JJ., joined.

Joseph S. Ozment, Memphis, Tennessee, for the appellant, Jason Reaves.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; Lee Coffee, Assistant
District Attorney General; and W. Chris Scruggs, Assistant District Attorney General, for the
appellee, State of Tennessee.


                                            OPINION

       The Defendant, Jason Reaves, was arrested on May 18, 1999, on charges of Driving While
Under the Influence, Public Intoxication, Driving without a Driver’s License, Refusal to Submit, and
Leaving the Scene of an Accident. On September 30, 1999, having waived his right to a jury trial,


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the Defendant pled not guilty and was tried in general sessions court. Following the trial the
Defendant was convicted of Driving While Under the Influence and Refusal to Submit. On
November 9, 1999, the Defendant was sentenced, and he immediately appealed his conviction to
criminal court and demanded his right to a jury trial. A bond arraignment held on December 13,
1999, and the Defendant failed to appear. The court ordered that a capias be issued.

        The Defendant was arrested on the capias and proceeded with the appeal of his case. The
State filed a motion to dismiss and remand the case based on the Defendant’s failure to appear in
court on December 13, 1999. At the hearing held on the motion to dismiss, the Defendant appeared
one hour late, and the court dismissed the Defendant’s appeal due to his tardiness, remanding it back
to the general sessions court. The Defendant is before this Court appealing the trial court’s order.

       The State concedes that the trial court erred when it remanded the case back to general
sessions court. In our view, the following excerpt from the State’s brief accurately sets forth the law
applicable to this issue:

       Tennessee Code Annotated § 27-5-108 provides for an appeal by a defendant in a
       criminal case from a general sessions court judgment to the circuit or criminal court.
       Section (c) states that all appeals “shall be heard de novo in the circuit court.” Tenn.
       Code Ann. § 27-5-108(c). In a de novo review, “the parties are entitled to a
       reexamination of the whole matter of law and fact.” State v. Cunningham, 972
       S.W.2d 16, 18 (Tenn. Crim. App. 1998) (quoting Richards v. Taylor, 926 S.W.2d
       569, 570 (Tenn. Ct. App. 1996)). The circuit court should not be concerned with
       what took place in the lower court. The matter must be tried as if no other hearing
       has ever been heard. Ward v. Meharry Medial College, 898 S.W.2d 181 (Tenn.
       1995); see also Hohenberg Bros. Co. v. Missouri Pac. R.R. Co., 586 S.W.2d 117,
       119 (Tenn. Ct. App. 1979). The court is required to try the matter and render
       judgment as if no judgment had previously been passed. Cunningham, 972 S.W.2d
       at 18.

       The issue presented in this case was previously addressed by this Court in State v.
       Winebarger, 70 S.W.3d 99 (Tenn. Crim. App. 2000). In Winebarger, the defendant
       was an hour late to criminal court for the announcement of her appeal. The court
       dismissed the appeal for “failure to prosecute” and remanded the case to the general
       sessions court for execution of the original sentence. Id. at 99. Ultimately , the Court
       in Winebarger concluded that “an appeal by a defendant in a criminal case from
       general sessions court is of such significance that it should not be dismissed merely
       because a defendant is one hour late for court.” Id. at 102.

        Based on the aforementioned reasoning, the State conceded “that the trial court erred in
dismissing the defendant’s de novo appeal. The ruling of the circuit court should be reversed, and
the defendant’s appeal to the circuit court should be heard.” We find that the State’s reasoning is
sound and, therefore, reverse the trial court on these grounds.


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      Accordingly, the judgment of the trial court is REVERSED, and this case is remanded to the
Criminal Court of Shelby County for de novo proceedings consistent with Cunningham and
Winebarger.



                                                   ___________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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