           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 C ourt
                            )
      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 Wayne Slate appeals the judgm ent of the S evier Co unty

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 c ourt er red in re fusing to expu nge h is conviction for first degree

murder and (2) whether his sentence is excessive.



       After a review of the reco rd, 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 Augu st 12, 1 988, a Sevie r County Criminal Court jury convicted

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

Sentencing Refo rm A ct of 19 82, Ap pellan t receive d a se ntenc e of life

imprison ment, enhance d by five years for use of a firearm in the commission of

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

year senten ce for attem pted jail esc ape. On direct appeal, this Court affirmed the

judgment of the trial cou rt. See State v. S late, No. 101, 1989 WL 130712, at *4

(Tenn. Crim. A pp. No v. 1, 1989).        Appe llant then filed a petition for post-

convic tion relief. This C ourt aga in affirmed the judgm ent of the tria l court with

regard to the firearm enhancement and the atte mpte d jail escape conviction but

reversed the judgm ent of the tria l court with re gard to th e first degree murder

conviction. The Court held that the evidence only established second degree



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murder and remanded the case to the trial cou rt for impo sition of an approp riate

sentence and a judgment of conviction. See Slate v. Sta te, No. 03C01-9201-CR-

00014, 1994 W L 1491 70, at *8 (T enn. C rim. App . Apr. 27, 1 994), perm. app.

denied, (Tenn. Oct. 24, 1994). Upon remand, the trial court gave Appellant the

opportu nity to be resentenced under the 1982 sentencing act or the 1989

sentencing act. App ellant, throu gh cou nsel, cho se to be resentenced under the

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

Appellant to twenty-five ye ars in the T ennes see De partme nt of Corre ction, a term

to run con secutive to his firearm enhan ceme nt and to his attempted jail escape

sentence. During th is senten cing hea ring, the trial court refused to expunge

Appellant’s con viction for first degree mu rder.



       II. EXPUNCTION OF FIRST DEGREE MURDER CONVICTION

      Appellant first alleges that the trial court erred in refus ing to e xpung e his

conviction for first degree mu rder. 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 d egree m urder.



      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
      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 . . . .




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

Appe llant’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 purp ose of resentencing and the entry of a
       judgmen t of conviction for secon d degree m urder.
               To me, what’s basically happened would be the
       equivalent of bein g indic ted for fir st degree murder, the
       jury being instructed as to second degree murder and
       poss ibly 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 WL

275012, at *1 (Te nn. Crim. App. May, 24, 199 6); State v. McC ary, 815 S.W.2d

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

reversed and re duce d but n ot reve rsed a nd dis miss ed, as we be lieve the

expunction statute an ticipates. We know of no c ase s uppo rting A ppella nt’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 cou rt properly d enied A ppellant’s reques t for expun ction.




                                 III. SENTENCING

       Appellant next alleges that his sentence is excessive. Without addressing

any of the substantive issu es presen ted by Appe llant, we turn to the sentencing


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

According to Pearson,

      [I]n order to com ply with the ex post facto prohibitions of
      the U.S. and T ennesse e Constitutions, trial court judges
      impo sing sentences after the effective date of the 1989
      statute, for crimes comm itted prior the reto, mu st calculate
      the appropriate sentence under both the 1982 statute and
      the 1989 statute, in the ir 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 senten ce than is authoriz ed by eith er Act in its
      entirety. The prohibition against ex post facto laws in bo th
      the United States an d the T enne ssee Cons titutions 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

Appe llant’s sentence under both sentencing acts. T he Sta te con cede s that th is

failure ma y require a reman d. W e believe th at it does.



      According ly, 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:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE


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