         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
               Assigned on Briefs August 8, 2000 (at Jackson)

                 STATE OF TENNESSEE v. ALVIN RAY TAYLOR

                     Direct Appeal from the Circuit Court for Coffee County
                                           NO . 28,970


                       NO . M1999-2566-CCA-R3-CD - FILED APRIL 26, 2001



James Curwood Witt, Jr., J., dissenting.


                 I find that I must respectfully depart from Judge Hayes’s opinion. I concur in the
reversal of the fine of $27,500, but I disagree that the fine provision of Code section 55-50–504(a)
should be declared unconstitutional and that we should impose a fine pursuant to the provisions of
Tennessee Code Annotated section 40-35-111(e)(1). I have concluded that we should hold that the
particular fine in this case is excessive via our sentencing law but that we may, and should, stop short
of declaring the statutory provision unconstitutional. On de novo review, we should impose a fine
of $3,000, as is authorized by Code section 55-50-504(a).

                It is unclear to me whether the majority bases its finding of constitutional infirmity
upon the Eighth Amendment’s “excessive fines” clause or its “cruel and unusual punishments”
clause. The majority characterizes the infirmity as an excessive fine, but the analysis used is based
upon the cruel and unusual punishment clause. See Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001
(1983). Moreover, the Helm court analyzed Helm’s sentence, as opposed to the sentencing statute.
Id. at 290-91, 103 S. Ct. at 3010. The court noted that “[t]he Constitution requires us to examine
Helm’s sentence to determine if it is proportionate to his crime.” Id. at 303, 103 S. Ct. at 3016
(emphasis added). After reviewing the specific characteristics of Helm’s case and his sentence, the
court concluded that “his sentence is significantly disproportionate to his crime, and is therefore
prohibited by the Eighth Amendment.” Id. at 303, 103 S. Ct. at 3016-17 (emphasis added). In Helm,
the Supreme Court did not analyze, much less strike down, the operative statute.

                 It is the duty of the courts to hold acts of the legislature constitutional if it is possible
to do so, resolving every reasonable doubt in favor of constitutionality . . . . The cardinal principal
[sic] of statutory construction is to save and not to destroy.” State v. Summers, 692 S.W.2d 439, 442
(Tenn. Crim. App. 1985). Thus, a court will not pass on the constitutionality of a statute, or any part
of one, unless it is absolutely necessary for the determination of the case and of the present rights of
the parties to the litigation. See State v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d
263 (1949). A presumption exists in favor of the constitutionality of an act, and the courts are
constrained to construe the act in question so as to reconcile its provisions with the constitution, if
possible. See Koen v. State, 162 Tenn. 573, 39 S.W.2d 283 (1931).

                In light of these principles, I believe that two important considerations belie the need
to declare the fine provisions of Code section 55-50-504(a)(2) unconstitutional.

                First, even if one applies the three-part proportionality test of Helm to the fine
imposed in the present case and if one concludes that the fine is disproportionate and offends the
constitution, the preferred remedy should be to strike down the fine but not the statute. The statute
is capable of application under relevant facts in which it may result in a large, but constitutional, fine.
Code section 55-50-504(a) establishes penalties for a “second or subsequent violation” of the statute
proscribing driving on a revoked license. Although the defendant was charged with only a second
offense, the statute could be operative to sanction, for instance, a ten-time offender who not only
violates the licensing law blatantly but is an incompetent driver and dangerously accident-prone. I
do not doubt that the offenses proscribed by section 55-50-504(a)(1) can be egregious enough to
render proportionate, and hence constitutional, a fine well in excess of $3,000.

                Second, I conclude that the imposition of a $27,500 fine in the present case is
unsupported in the record and that it is unnecessary to declare the fine unconstitutional, much less
the statutory provision. As noted above, in Helm, the Supreme Court held that the sentence imposed
pursuant to the South Dakota recidivist statute was not proportionate and was, therefore, in violation
of the Eighth Amendment to the United States Constitution. In the present case, however, we need
only resort to Tennessee statutes, as interpreted by Tennessee courts, to conclude that the fine was
unsupported in the record and, therefore, was excessive as a simple matter of sentencing law.

                “This court has the authority to review fines pursuant to the l989 Sentencing Act.”
State v. Patterson, 966 S.W.2d 435, 446 (Tenn. Crim. App. 1997). “The trial court’s imposition of
a fine, within the limits set by the jury, is to be based upon the factors provided by the 1989
Sentencing Act, which include “the defendant’s ability to pay that fine, and other factors of judgment
involved in setting the total sentence.” State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App.
1993); see State v. Lewis, 978 S.W.2d 558, 567 (Tenn. Crim. App. 1997). Thus, the trial court, and
upon de novo review this court, must consider factors and principles “such as[] prior history,
potential for rehabilitation, financial means, and mitigating and enhancing factors[] that are relevant
to an appropriate, total sentence.” State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997).
The mandated considerations include the defendant’s ability to pay the fine, Patterson, 966 S.W.2d
at 446; Marshall, 870 S.W.2d at 542; State v. Bryant, 805 S.W.2d 762, 766 (Tenn. Crim. App.
1991); however, a “significant fine is not automatically precluded just because it works a substantial
hardship of a defendant – it may be punitive in the same fashion incarceration may be punitive.”
Marshall, 870 S.W.2d at 542. “The seriousness of the offense[] may support the punitive nature of
the fine assessed.” State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).




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               Using these guidelines, it is as easy to conclude that the fine in the present case runs
counter to the1989 Sentencing Act as it is to conclude, via the three-part proportionality test of
Helms, that the fine violates the constitution.

                In the present case, the record reflects that the defendant was convicted of second-
offense driving under the influence (DUI), for which the jury selected, and the trial court approved,
a fine of $3,500, and second-offense driving on a revoked license (DRL), for which the jury selected,
and the trial court approved, a fine of $27,500. The defendant was also convicted of violation of the
implied consent law. In addition to the fines, the trial court imposed a sentence of eleven months,
29 days on the DUI, with 200 days to be served before being released on probation, to run
concurrently with the same sentence imposed on the DRL. The defendant was ordered to pay court
costs on the consent law violation.

                Although no transcript of the defendant’s jury trial is provided in the appellate record,
we glean from the motion for new trial that the conviction offenses resulted from an automobile
accident, and the defendant maintained at trial that he was not the driver of the car in which he was
riding. The presentence report introduced at the sentencing hearing reflects that the defendant was
born August 21, 1948, and on January 10, 1998, he was arrested for DUI and DRL following a traffic
accident in Tullahoma. Apparently no one suffered any injuries or damages in the accident; at least,
the report indicated that restitution was “not applicable.” The report indicated that neither mitigating
factors nor enhancing factors had been filed by the parties.

                 At the time of trial, a charge was pending against the defendant for an arson on a fire
that occurred while the defendant was on bond for the current charges. The defendant’s prior
criminal record included the following convictions: DUI, 1994, 1992, 1990; DRL 1994, 1992, 1988;
parole revocation (theft) 1993; theft 1993; failure to appear 1992; worthless check 1990, 1989,
1987(2), 1985, 1969; burglary, 1969; larceny 1993, 1967; and speeding 1989. Various offenses
similar in nature to the above convictions were reported, but not verified, from other jurisdictions,
including federal cases. The investigation officer testified that the defendant served federal prison
time and admitted convictions in Virginia and in Memphis, Tennessee. The defendant spent
significant periods of time in incarceration and had been employed recently as a nurseryman and
landscaper. The defendant did not testify at the sentencing hearing. His counsel stipulated the
correctness of the presentence report.

                 During the sentencing hearing, the prosecutor referred to the fine recommended by
the jury as being “unusually high.” In his argument to the trial judge, the prosecutor commented that
the jury “took the charge real darn serious in assessing what I can only describe as the biggest fine
I have ever heard o[f] in the State of Tennessee for driving on revoked license pursuant to that
statute” and suggested that the court might “consider redocketing that matter for remittitur for
something more in line with the defendant’s ability to pay, but all things considered, I . . . think . .
. that an 11-29 sentence is . . . merited. . . .”




                                                  -3-
                The trial court made no findings with respect to the jury-recommended fine, nor did
it orally pronounce its approval of any fine. The jury-recommended fine amounts appear, without
any further commentary by the trial judge, in the court’s judgments.

                Based upon this court’s de novo review of this record, I must conclude that, pursuant
to our sentencing law, the record fails to support a fine of $27,500. The first question we must
address is whether the case should be remanded for further consideration and findings by the trial
court or whether we should adjudicate the fine as a function of de novo review. We recognize and
emphasize that a “trial court may not simply impose the fine as fixed by the jury.” Blevins, 968
S.W.2d at 895. In the past, when the trial judge has “failed to articulate the basis for imposing the
. . . fine set by the jury,” we have remanded for the trial court’s reconsideration in light of all
appropriate sentencing considerations. Lewis, 978 S.W.2d at 567.

                  In the present case, however, the record supplies a basis for a rational de novo review,
and unencumbered as we are by any findings of the trial court, we should conclude that the
significant, but minimum, fine of $3,000 should be imposed. To be sure, the defendant’s prior
record and his low potential for rehabilitation support the propriety of a significant, or punitive, fine.
See Marshall, 870 S.W.2d at 542. On the other hand, the defendant’s social history and lengthy
incarceration periods suggest the defendant’s inability to pay a large fine, and the prosecutor himself
acknowledged the defendant’s inability to pay “the biggest [DRL] fine” he had ever heard of in
Tennessee. Also, it is significant that the state in its sentencing argument to the trial court, and the
trial court itself, so far as we can glean from the record, believed that the incarceration period of 200
days was of much more penal value than the fines imposed. We should conclude that, in view of
the state and the trial court discerning little or no justification for the “biggest [DRL] fine” in
Tennessee, we should lay aside the jury’s recommendation and impose the statutory minimum fine
of $3,000.

               Respectfully, such a conclusion would be a function of the sentencing law and
obviates the necessity of constitutional intervention to rectify the fine.



                                                         ___________________________________
                                                         James Curwood Witt, Jr., Judge




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