                    IN THE COURT OF APPEALS OF TENNESSEE
                         WESTERN SECTION AT JACKSON
                ________________________________________________
                                                                           FILED
                                                                            Jan. 17, 1997
STATE OF TENNESSEE,
                                                                           Cecil Crowson, Jr.
                                                                            Appellate Court Clerk
       Appellee,
                                                   Shelby Circuit No. 71235 T.D.
Vs.                                                C.A. No. 02A01-9607-CV-00152

JOHN GUINN,

      Appellant.
___________________________________________________________________________

                   FROM THE CIRCUIT COURT OF SHELBY COUNTY
                     THE HONORABLE D’ARMY BAILEY, JUDGE




                   W. Mark Ward, Assistant Shelby County Public Defender
                                      For Appellant

                      Charles W. Burson, Attorney General and Reporter
                        Ellen H. Pollack, Assistant Attorney General
                                        For Appellee




                             AFFIRMED AND REMANDED

                                       Opinion filed:




                                                          W. FRANK CRAWFORD,
                                                          PRESIDING JUDGE, W.S.




CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE


       This is a juvenile delinquency proceeding. Defendant, John Guinn, appeals from the

order of the Circuit Court of Shelby County on a jury verdict finding defendant guilty of

committing the delinquent act of attempt to commit murder in the second degree.
       On May 12, 1995, a petition was filed in Juvenile Court for Shelby County, Tennessee,

charging the defendant with the delinquent act of attempt to commit murder in the first degree.

After an evidentiary hearing in juvenile court, defendant was found to have committed the

delinquent act and was committed to the Tennessee Department of Youth Development for an

indefinite period of time. Defendant appealed to the circuit court for a trial de novo, and the

record was certified to the circuit court on July 18, 1995. On July 19, 1995, defendant filed a

motion in the circuit court to stay the judgment of the juvenile court and to set bond. This

motion was granted, and defendant was released from custody pending the trial of the case.

Defendant demanded a jury, and the case was set for trial on December 6, 1995. At the

conclusion of the trial on December 12, 1995, the jury returned a verdict finding that defendant

had committed the delinquent act of attempted second degree murder. The court subsequently

entered an order on the jury verdict, and the defendant has appealed.

       Defendant’s brief states the issues for review as:

               1. Whether the trial judge erred in failing to dismiss the petition
               against the appellant on the grounds that the court failed to
               conduct the appeal hearing within 45 days as required by Tenn.
               Code Ann. § 37-1-159.

               2. Whether the petition should be dismissed as the jury failed to
               return a verdict finding that appellant committed a delinquent act.

       As to defendant’s first issue, defendant asserts that the trial court erred in not granting

his pre-trial motion to dismiss the case with prejudice because the circuit court hearing was not

held within the time prescribed by statute.

       T.C.A. § 37-1-159 (1996) provides in part pertinent to this appeal:

               37-1-159. Appeals. - (a) The juvenile court shall be a court of
               record and any appeal from any final order or judgment in a
               delinquency proceeding, unruly child proceeding, or dependent
               and neglect proceeding, filed under this chapter, except a
               proceeding pursuant to § 37-1-134, may be made to the circuit
               court which shall hear the testimony of witnesses and try the case
               de novo. The appeal shall be perfected within ten (10) days,
               excluding nonjudicial days, following the juvenile court’s
               disposition. If a rehearing of a matter heard by a referee is not
               requested or provided pursuant to § 37-1-107(e), the date of the
               expiration of the time within which to request rehearing shall be
               the date of disposition for appeal purposes, and the parties and
               their attorneys shall be so notified by the referee. If there is a
               rehearing by the judge, the appeal period shall commence the day
               after the order of disposition is entered.

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               (b) An appeal does not suspend the order of the juvenile court,
               nor does it release the child from the custody of that court or of
               that person, institution or agency to whose care the child has been
               committed. Pending the hearing, the circuit court may make the
               same temporary disposition of the child as is vested in juvenile
               courts; provided, that until the circuit court has entered an order
               for temporary disposition, the order of the juvenile court shall
               remain in effect.

               (c) When an appeal has been perfected, the juvenile court shall
               cause the entire record in the case, including the juvenile court’s
               findings and written reports from probation officers, professional
               court employees or professional consultants, to be taken forthwith
               to the circuit court whose duty it is, either in term or in vacation,
               to set the case for an early hearing. When an appeal is taken from
               a juvenile court’s decision that involves removal of a child or
               children from the custody of their natural and/or legal parents or
               guardian or from the department of children’s services, or when
               the decision appealed involves the deprivation of a child’s liberty
               as the result of a finding that such child engaged in criminal
               activity, such hearing shall be held within forty-five (45) days of
               receipt of the findings and reports. In its order, the circuit court
               shall remand the case to the juvenile court for enforcement of the
               judgment rendered by the circuit court. Appeals from an order of
               the circuit court pursuant to this subsection may be carried to the
               court of appeals as provided by law.

       As previously noted, the juvenile court record was certified to the circuit court on July

18, 1995, and the trial of this case was commenced on December 6, 1995. In the meantime,

defendant had obtained a stay of the juvenile court judgment and was released from custody on

bond pending the trial. Defendant asserts that the circuit court is required to dismiss the case

because the case was not commenced within the 45 day period set out in T.C.A. § 37-1-159(c).

We must respectfully disagree.

       It is a general rule that statutory provisions which relate to mode or time of doing an act

to which the statute applies are not held to be mandatory, but are held to be directory only,

especially when there is no showing of prejudice to the one seeking to invoke the time limit. Big

Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 520 (Tenn. App.

1981). In Garrett v. State of Tennessee Dept. of Safety, 717 S.W.2d 290 (Tenn. 1986), a truck

owner appealed the decision of the Department of Safety permitting forfeiture of his truck with

an altered vehicle identification number. The administrative law judge, after conducting a

hearing on the case, failed to comply with the provisions of T.C.A. § 4-5-314 (g) (1985)

requiring that a decision be rendered in writing within 90 days after conclusion of the hearing.


                                                3
Our Supreme Court, after noting that forfeiture statutes are strictly construed because forfeitures

are not favored in the law and that because the proceedings are quasi criminal the presumption

of innocence must be considered, said:

                     Although we are in agreement with the general rules stated
                 above, we will not construe any statute, including a confiscation
                 statute, so strictly that we negate the intentions of the legislators
                 who passed the law. Although the legislative intent behind the
                 ninety day requirement in T.C.A. § 4-5-314(g), is not clear, the
                 general rule in this state is that statutory provision relating to the
                 time of doing an act to which statute applies are directory rather
                 than mandatory. See Trapp v. McCormick, 175 Tenn. 1, 130
                 S.W.2d 122, 125 (1939); Big Fork Mining Co. v. Tennessee
                 Water Quality Control Board, 620 S.W.2d 515, 520 (Tenn. App.
                 1982), cert. denied (Tenn. 1981). This is especially true absent
                 some showing of prejudice. Id. Thus, in cases like the present
                 one where no prejudice has been shown, we can infer that the
                 legislature intended for the ninety day provision to be directory
                 in nature. Since the statue is directory rather than mandatory,
                 violation of the ninety day rule does not nullify the forfeiture
                 hearing or order.

Garrett, 717 S.W.2d at 291.

       In the case before us, the 45 day period relates only to the time for the hearing and does

not relate to the merits of the case. Defendant was duly released from custody after the appeal

was filed, and there has been no showing of any prejudice to the defendant by the failure to

conduct the trial within the 45 day period. This Court, like our Supreme Court in Garrett, can

infer that the legislature intended the 45 day provision to be directory in nature. This issue is

without merit.

       In defendant’s second issue, he asserts that he could not have committed a delinquent act

of attempted second degree murder because there is no criminal offense of attempted second

decree murder in this state. We must respectfully disagree.

        T.C.A. § 39-12-101 (1991) provides:

                 39-12-101. Criminal attempt. - (a) A person commits criminal
                 attempt who, acting with the kind of culpability otherwise
                 required for the offense:
                 (1) Intentionally engages in action or causes a result that would
                 constitute an offense if the circumstances surrounding the conduct
                 were as the person believes them to be;

                 (2) Acts with intent to cause a result that is an element of the
                 offense, and believes the conduct will cause the result without
                 further conduct on the person’s part; or


                                                   4
               (3) Acts with intent to complete a course of action or cause a
               result that would constitute the offense, under the circumstances
               surrounding the conduct as the person believes them to be, and
               the conduct constitutes a substantial step toward the commission
               of the offense.

               (b) Conduct does not constitute a substantial step under
               subdivision (a)(3) unless the persons’ entire course of action is
               corroborative of the intent to commit the offense.

               (c) It is no defense to prosecution for criminal attempt that the
               offense attempted was actually committed.

       Defendant contends that since second degree murder is “a knowing killing of another”

T.C.A. § 39-13-210 (a)(1) (1991), an attempt to commit second degree murder would involve

the “specific intent” to commit “a knowing act.” We do not disagree that that could be the result,

but it is clear that in second degree murder, the murder is the intended result of the perpetrator’s

act. If the perpetrator actually possesses an intent to kill, he or she may be charged with

attempted murder. See State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996).

        Once a homicide or attempted homicide it established, it is presumed to be the offense

of murder in the second degree or an attempt to commit murder in the second degree, and to

elevate the offense to first degree murder or an attempt thereof, the state must prove the elements

of premeditation and deliberation. State v. Boyd, 909 S.W.2d 50, 53 (Tenn. Crim. App. 1995).

In Boyd, the Court of Criminal Appeals held that the evidence was insufficient to support a

conviction for attempted first degree murder but was sufficient to support a conviction for

attempted second degree murder. Accordingly, the judgment of the trial court was modified, and

the case was remanded for new sentencing. Id. at 55.

        We find both of appellant’s issues without merit. The judgment of the trial court is

affirmed, and the case is remanded to the trial court for such further proceedings as may be

necessary. Costs of the appeal are assessed against the appellant.

                                                        _________________________________
                                                        W. FRANK CRAWFORD,
                                                        PRESIDING JUDGE, W.S.
CONCUR:

_________________________________
ALAN E. HIGHERS, JUDGE

_________________________________
DAVID R. FARMER, JUDGE

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