          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                            MARCH 1998 SESSION
                                                                 FILED
                                                                    June 2, 1998

                                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,                    )                         Appellate C ourt Clerk
                                       )    NO. 02C01-9706-CC-00213
      Appellant,                       )
                                       )    LAUDERDALE COUNTY
VS.                                    )
                                       )    HON. JOSEPH H. WALKER,
JAMES E. THOMPSON,                     )    JUDGE
                                       )
      Appellee.                        )    (Habitual Motor Vehicle Offender)



FOR THE APPELLANT:                          FOR THE APPELLEE:

JOHN KNOX WALKUP                            ROBERT G. MILLAR
Attorney General and Reporter               802 Troy Avenue
                                            P.O. Box 507
KENNETH W. RUCKER                           Dyersburg, TN 38025-0507
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493

ELIZABETH T. RICE
District Attorney General
302 Market Street
P.O. Box 563
Somerville, TN 38068




OPINION FILED:



REVERSED AND REMANDED



JERRY L. SMITH,
JUDGE
                                     OPINION



       The State of Tennessee appeals the order of the trial court dismissing its

petition to have the defendant, James E. Thompson, declared an Habitual Motor

Vehicle Offender (HMVO) pursuant to Tenn. Code Ann. § 55-10-603. We

reverse the ruling of the trial court and remand the case for further proceedings

consistent with this opinion.



                                          I.



       The defendant was arrested on three (3) separate occasions in 1993 and

1994 for driving under the influence of an intoxicant and was convicted the same

years. The second and third convictions were adjudicated on the same day,

although committed on different days. The District Attorney General filed a

petition to have the defendant classified as an HMVO. A hearing was held

where the defendant, represented by counsel, admitted that the convictions were

valid. Although acknowledging the validity of the three (3) prior DUI convictions

in 1993 and 1994, the trial court declined to declare the defendant an HMVO

noting:

              (1) all three (3) DUI convictions were treated as first
              offenses by the respective courts; and

              (2) the rehabilitative efforts and present
              circumstances of the defendant indicate that an
              HMVO declaration would be inappropriate.

The state appeals this ruling.



                                         II.



       Habitual offender status may be conferred upon one who, during a three

(3) year period, is convicted of three (3) or more of the offenses enumerated in

Tenn. Code Ann. § 55-10-603(2)(A)(Supp. 1997). Driving an automobile under

the influence of an intoxicant, Tenn. Code Ann. § 55-10-401, is one of the listed

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offenses. Tenn. Code Ann. § 55-10-603(2)(A)(viii)(Supp. 1997).



       Tenn. Code Ann. § 55-10-603 does not allow discretion in the trial court.

If a defendant is found to have been validly convicted of the requisite number of

enumerated offenses within the applicable time period, the defendant will be

declared an HMVO. See Tenn. Code Ann. § 55-10-613(a). Rehabilitation efforts

and the present circumstances of a defendant are irrelevant to the HMVO

declaration.



       The trial court erroneously considered the two (2) convictions adjudicated

on the same day as one (1) offense. The Habitual Offender Act does provide

that offenses committed on the same day will count as one offense for the

purposes of HMVO status. Tenn. Code Ann. § 55-10-604(b). The defendant,

however, was arrested for driving under the influence of an intoxicant on three

(3) separate occasions. The dates of adjudication are of no relevance except in

determining the applicable period in which the convictions must occur to have

HMVO status conferred. See Tenn. Code Ann. § 55-10-604(c).



       Furthermore, the fact that the prior convictions were treated by the

respective courts as first offenses is irrelevant. Habitual offender status simply

requires three (3) convictions of the enumerated offenses, committed on different

dates, within the three-year period. See Tenn. Code Ann. §§ 55-10-603(2)(A),

604(Supp. 1997).



       Accordingly, the judgment of the trial court is reversed and the case is

remanded for further proceedings consistent with this opinion.




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                                                        _________________________
                                                        JERRY L. SMITH, JUDGE




CONCUR:




_______________________________
GARY R. WADE, PRESIDING JUDGE




Not Participating1
JOE B. JONES, JUDGE




        1
           Presiding Judge Joseph B. Jones died on May 1, 1998. This court is indebted to Judge Jones for
his lifetime of contribution to the bench and bar of this State.

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