             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            FEBRUARY 1997 SESSION
                                                       FILED
                                                          June 09, 1997

BARRY WELLS,                       )                   Cecil Crowson, Jr.
                                   )                   Appellate C ourt Clerk
                   APPELLANT,      )
                                   )    No. 02-C-01-9610-CV-00358
                                   )
                                   )    Lauderdale County
v.                                 )
                                   )    Joseph H. Walker, III, Judge
                                   )
                                   )    (Habeas Corpus)
RONNIE RICKARD,                    )
                                   )
                    APPELLEE.      )



FOR THE APPELLANT:                      FOR THE APPELLEE:

Robert H. Hutton                        John Knox Walkup
Attorney at Law                         Attorney General & Reporter
1700 One Commerce Square                500 Charlotte Avenue
Memphis, TN 38103                       Nashville, TN 37243-0497

                                        Ellen H. Pollack
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        Elizabeth T. Rice
                                        District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068

                                        Mark E. Davidson
                                        Assistant District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068




OPINION FILED:______________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, Barry Wells (petitioner), appeals as of right from a judgment of the

trial court refusing to void his conviction for theft under $500 on the ground the general

sessions judge who tried and sentenced him was a lay judicial officer. In this Court, the

petitioner contends he was entitled to have a judge licensed to practice law sit in judgment

of him. After a thorough review of the record, the briefs submitted by the parties, and the

law governing the issue presented for review, it is the opinion of this Court the judgment

of the trial court should be affirmed.

       On July 17, 1995, an arrest warrant was issued by the clerk of the Lauderdale

County general sessions court for the arrest of the petitioner. The warrant alleged the

offense of theft under $500, a Class A misdemeanor. The affidavit of complaint alleged

the petitioner stole a 13" television on July 12, 1995 from Julia Claybrooks. A deputy

sheriff subsequently executed the warrant and the petitioner was placed in the Lauderdale

County Jail. The petitioner appeared in the general sessions court on July 24, 1995. He

entered a plea of not guilty, waived his right to counsel, and waived his right to trial by jury.

The petitioner was found guilty of theft under $500 after a trial on the merits. He was

sentenced to pay a $100 fine and serve eleven months and twenty-nine days in the

Lauderdale County Jail at 75 percent. All but thirty days of the petitioner's sentence was

suspended and he was placed on probation. He was ordered to make restitution in the

sum of $250 and to pay the accrued court costs.

       On September 28, 1995, a capias was issued for the arrest of the petitioner for a

violation of his probation. The capias was not served until August 25, 1996. The petitioner

appeared in the general sessions court the next day, August 26, 1996. The petitioner was

not advised of the right to counsel and counsel was not appointed to represent him. The

petitioner did not waive his right to counsel. The general sessions judge revoked the

petitioner's probation. He was ordered to serve the balance of his sentence or pay $522.

       The petitioner initiated this action for habeas corpus in the Circuit Court for the 25th

Judicial District. The trial court found the petitioner was denied his right to counsel at the

revocation hearing.     This matter was remanded to the General Sessions Court of

                                               2
Lauderdale County for a new hearing. The general sessions court was directed to provide

counsel to the petitioner in the absence of “a clear showing of a waiver of the right to an

attorney" in writing.

          The trial court found that Lauderdale County has never had a general sessions

judge who was licensed to practice law. In 1990, Billy Wayne Williams, a retired state

trooper, was elected general sessions judge. No licensed attorney qualified to run for the

office.

          The trial court followed the decision of the Supreme Court of the United States in

North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976) when denying the

petitioner relief on this issue. The petitioner relies upon the Tennessee Supreme Court's

decision in State ex rel. Anglin v. Mitchell, 596 S.W.2d 779 (Tenn. 1980), to support his

contention that he was entitled to a lawyer judge. The trial court also relied upon Tenn.

Code Ann. § 16-15-5005.

          In North the United States Supreme Court held:


                We conclude that the Kentucky two-tier trial court system with
                lay judicial officers in the first tier in smaller cities and an
                appeal of right with a de novo trial before a traditionally law-
                trained judge in the second [tier] does not violate either the due
                process or equal protection guarantees of the Constitution of
                the United States. . . .


427 U.S. at 339, 96 S.Ct. at 2714, 49 L.Ed.2d at 542. This jurisdiction, like Kentucky, has

a two-tier system. An accused who submits to the jurisdiction of the general sessions court

and is convicted of a criminal offense has the right to appeal to a court of general

jurisdiction, a criminal court or circuit court, exercising criminal jurisdiction. Tenn. Code

Ann. §§ 27-5-108, 27-3-131 (Supp. 1996). If the accused desires a jury trial, he must write

such fact on the face of the appeal form. Tenn. Code Ann. § 27-3-131 (Supp. 1996).

          The petitioner's reliance upon State ex rel. Anglin v. Mitchell is misplaced. The

Supreme Court made its holding clear. The court said:


                We hold, in the context of a juvenile commitment, that "the law
                of the land" provision of Article I, Section 8 of the Constitution
                of Tennessee does not permit a judge who is not licensed to
                practice law to make any disposition of a juvenile that operates
                to confine him or deprive him of his liberty.



                                                3
596 S.W.2d at 791. The appellate courts of this jurisdiction have refused to extend Anglin

to other circumstances. In State v. Pritchett, 621 S.W.2d 127, 132 (Tenn. 1981), a capital

case, the Supreme Court refused to extend Anglin to preliminary hearings conducted by

a non-lawyer general sessions judge. This Court reached the same result as Pritchett in

State v. Voltz, 626 S.W.2d 291, 295-96 (Tenn. Crim. App.), per. app. denied (Tenn. 1981).

This Court has refused to extend Anglin to transfer hearings conducted by a non-lawyer

juvenile court judge. State v. Davis, 637 S.W.2d 471, 474 (Tenn. Crim. App. 1982); State

v. Briley, 619 S.W.2d 149, 152 (Tenn. Crim. App. 1981).

      The Supreme Court in Anglin took great pains to distinguish the application of North

to juvenile proceedings and adult proceedings. The court said:


             The differences between North v. Russell and the case at bar
             are glaring. There the defendant was an adult; here we deal
             with a minor. There the defendant was sentenced to 30 days
             in jail, fined $150.00 and stripped of his driver's license; here
             we are faced with confinements up to seven and eight years.
             There the offense was a misdemeanor; here it was a felony.


596 S.W.2d at 790. This Court applied North in Voltz.

      There is a statutory mandate that general sessions judges be licensed lawyers.

However, there is an exception to this mandate. Tenn. Code Ann. § 16-15-5005(b) states

that effective September 1, 1990:


             If no licensed attorney qualifies for an election being held to fill
             the office of general sessions judge, or the only attorney
             candidate legally withdraws, the county election commission
             shall extend the qualification deadline for a period of ten (10)
             days, during which period persons not licensed to practice law
             may qualify to seek the office of general sessions judge. The
             provisions of the second sentence of this subsection shall not
             apply in counties having a population of not less than fifty-one
             thousand twenty-five (51,025) nor more than fifty-one thousand
             one hundred twenty-five (51,125) according to the 1980 federal
             census or any subsequent federal census.


      This statute is constitutional. It does not violate the Due Process Clause or Equal

Protection Clause of the United States Constitution or the law of the land provision of the

Tennessee Constitution.

      As previously stated, Lauderdale County has never had a licensed lawyer as a

general sessions judge. In 1990 no licensed lawyer qualified for the office. According to


                                              4
the statute, non-lawyers could qualify for the office. Judge Williams qualified pursuant to

the statute and was duly elected by the citizens of Lauderdale County.



                                      CONCLUSION



       Judge Williams was duly elected and qualified to serve in the capacity of general

sessions judge by virtue of Tenn. Code Ann. § 16-15-5005(b). Therefore, he had the right

to try the petitioner for the misdemeanor offense of theft under $500 after the petitioner

waived his right to counsel and trial by jury. Judge Williams also had the authority to

sentence the petitioner after finding him guilty.

       This Court adopts the holding in North v. Russell. While Judge Williams was not

licensed to practice law, the judges of the circuit court are licensed to practice law.

Furthermore, the petitioner had a right to appeal his conviction and sentence to the Circuit

Court for the 25th Judicial District sitting in Lauderdale County. He was entitled to a jury

trial if he had requested it. However, the petitioner failed to appeal. Therefore, he waived

his right of appeal. Obviously, the petitioner was satisfied with the sentence because

Judge Williams granted him probation for most of the sentence. He did not become

dissatisfied until Judge Williams revoked his probation for failing to conform to the

conditions of the probation.




                                   _____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE




                                             5
CONCUR:



_______________________________________
        JOHN H. PEAY, JUDGE



_______________________________________
        JOE G. RILEY, JUDGE




                                  6
