             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE                 FILED
                               OCTOBER 1998 SESSION
                                                                January 27, 1999

                                                              Cecil W. Crowson
STATE OF TENNESSEE,               )                          Appellate Court Clerk
                                  )
             Appellee,            )    No. 01C01-9801-CC-00003
                                  )
                                  )    Rutherford County
v.                                )
                                  )    Honorable J. S. Daniel, Judge
                                  )
THOMAS CUNNINGHAM,                )    (Sentencing)
                                  )
             Appellant.           )


For the Appellant:                     For the Appellee:

Lionel R. Barrett, Jr.                 John Knox Walkup
Washington Square Two                  Attorney General of Tennessee
Suite 418                                     and
222 Second Ave., N.                    Lisa A. Naylor
Nashville, TN 37201                    Assistant Attorney General of Tennessee
(ON APPEAL)                            425 Fifth Avenue North
                                       Nashville, TN 37243-0493
John B. Melton, III
120 E. Main St., Third Floor           William C. Whitesell, Jr.
Murfreesboro, TN 37133                 District Attorney General
(AT TRIAL)                                     and
                                       Paul Holcombe
                                       Assistant District Attorney General
                                       Rutherford County Judicial Bldg.
                                       Murfreesboro, TN 37130




OPINION FILED:____________________


AFFIRMED IN PART, FORFEITURE VACATED,
REMANDED FOR FURTHER PROCEEDINGS

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Thomas Cunningham, was convicted by a jury in the

Rutherford County Circuit Court of illegal possession of commercial fishing gear and

illegal possession of game fish, both Class B misdemeanors. The trial court sentenced

the defendant to six months in the workhouse at seventy-five percent for each offense,

to be served consecutively, suspended after seven days’ confinement. Also, the

defendant was fined a total of seven hundred fifty dollars, had his fishing license

suspended for one year, and was prohibited from entering or going near Percy Priest

Lake, the site of the offenses, for one year. Finally, the trial court ordered the

defendant’s boat, motor, and gill net forfeited. In this appeal as of right, the defendant

challenges the imposition of seven days’ confinement and the forfeiture. We affirm the

sentences, but we vacate the forfeiture and remand the case to the trial court.



              At the sentencing hearing, the defendant admitted to December 1994

convictions for illegal possession of game fish, illegal possession of commercial fishing

gear, and illegal use of commercial fishing gear. These offenses were also committed

on Percy Priest Lake. He received full probation for these convictions and was allowed

to retain his boat, motor, and trailer. He was also permitted to retain his fishing license.

The offenses in the present case were committed in February 1997. The defendant

explained that his criminal actions were necessary to provide for his seriously ill wife.



              In imposing sentence, the trial court found as follows:

              Okay. This was an unusual case that presented some
              compelling issues. Number one, [the defendant], basically, is
              totally wrong. He has violated the law callously, and he uses
              to some extent his wife's condition to justify that. And I'm very
              sympathetic with his wife, and I can understand her concern
              and their concern for her health.

              But in the face of having been convicted a short period of time
              before, he's back at it again not only commercial fishing in an
              area not allowed but with illegal equipment after having


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              previously had a similar conviction. So, with that         type of
              callous disregard to the law, the sentence imposed        in each
              count is 6 months, 75 percent. They run consecutive       to each
              other. There has to be serious penalties imposed          against
              those who violate the law.

The trial court was obviously concerned that the defendant had not learned his lesson

from his previous sentence of full probation.



              In this appeal, our review is de novo with a presumption that the trial

court’s findings are correct. See T.C.A. § 40-35-401(d). As the Sentencing

Commission Comments to this section note, the burden is now on the defendant, as the

appellant, to show that he was improperly sentenced.



              Although the defendant was eligible for full probation, the trial court also

had the authority to order a portion of the sentence to be served in confinement. See

T.C.A. § 40-35-302(e). In this respect, confinement is appropriate when it is necessary

to avoid depreciating the seriousness of the offense and when less restrictive measures

have recently been applied unsuccessfully. See T.C.A. § 40-35-103(1)(B)-(C).



              In the present case, the defendant essentially wants the same sentence

he received the last time he committed the same offenses. Although an important

sentencing principle is to encourage effective rehabilitation, see T.C.A. § 40-35-

102(3)(c), the grant of full probation the last time obviously did not succeed in

rehabilitating the defendant. To the contrary, his conduct indicates that he thought that

he could continue to violate the law without consequence. The trial court correctly

determined that the defendant needed a sterner punishment this time in order to learn

his lesson.



              The defendant next contends that there is no statutory authority for the

forfeiture of his boat, motor, and gill net and that even if there is, this is too severe a



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punishment. The record reveals that the trial court ordered the defendant's gill net,

boat, and outboard motor declared contraband pursuant to T.C.A. § 70-6-201. As

contraband, the items were ordered delivered to the Director of the Tennessee Wildlife

Resources Agency for sale.



               Pursuant to 70-6-201, items used to violate wildlife resources commission

laws or regulations are subject to seizure and forfeiture. “Upon conviction, the court or

jury trying the case shall . . . determine whether or not the things seized shall be

declared contraband.” T.C.A. § 70-6-201(c)(1). Upon being declared contraband, the

property is delivered to the executive director of the agency for advertisement and sale.

See T.C.A. § 70-6-201(c)(2). In other words, there is ample statutory authority for a

forfeiture of the defendant’s equipment.



               Also, we disagree with the defendant’s contention that the forfeiture was

too severe. As previously indicated, one goal of the defendant’s punishment was to

insure that he did not repeat these crimes again. The forfeiture was appropriate to

remedy any concerns about future problems.



               However, the forfeiture must be initiated upon the decision of whoever

tried the defendant: in this case, the jury. The record on appeal indicates that the trial

court declared the items contraband and ordered their sale. If the jury did not declare

the fishing equipment to be contraband, then the trial court was without authority to do

so during sentencing. However, the record does not contain a transcript of the

defendant’s trial. Thus, we do not know if the jury took the initial action that was then

repeated by the trial court in its order. Under such a circumstance, the forfeiture would

be affirmed.




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               Therefore, the forfeiture order is vacated and the case is remanded to the

trial court for a determination of whether the jury declared the defendant’s boat, motor,

and gill net contraband and for further proceedings as needed. The judgment of the

trial court is in all other respects affirmed.



                                                 __________________________
                                                 Joseph M. Tipton, Judge


CONCUR:



  (Not participating)
Paul G. Summers, Judge




____________________
Joe G. Riley, Judge




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