         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    L. Craig Johnson, Judge



                      No. M1999-2566-CCA-R3-CD - Filed April 26, 2001


Alvin Ray Taylor was convicted by a jury of driving on a revoked license, second offense. The jury
fixed his fine at $27,500. Taylor argues on appeal that the fine provisions of TENN. CODE ANN . §
55-50-504(a)(2) permit the imposition of a fine with no maximum limit violating the Eighth
Amendment protection against excessive fines. After review, we find the penalty provisions of the
statute, as it relates to the amount of fine which may be fixed, unconstitutional and the fine imposed
in this case excessive. Accordingly, that portion of the judgment imposing a fine of $27,500 is
vacated. The Appellant’s fine is modified to reflect a fine of $2,500 pursuant to TENN. CODE ANN .
§ 40-35-111 (e)(1) ( maximum authorized fine for class A misdemeanor).

      Tenn. R. App. P. 3; Judgment of the Circuit Court Vacated; Sentence Modified.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J.,
joined; JAMES CURWOOD WITT, JR., J., dissenting.

Gregory M. O'Neal, Winchester, Tennessee, for the Appellant, Alvin Ray Taylor.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T.
Ryan, Assistant Attorney General, Michael Layne, District Attorney General, and Steve Weitzman,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

        The Appellant, Alvin Ray Taylor, appeals the judgment of the Coffee County Circuit Court
affirming the jury's assessment of a fine of $27,500 for the offense of driving on a revoked license,
second offense. The sole issue on appeal is whether the failure of the fine provision of TENN. CODE
ANN . § 55-50-504(a)(2) to establish a maximum penalty constitutes cruel and unusual punishment
contrary to the Eighth Amendment to the United States Constitution and Article I, Section 16 of the
Tennessee Constitution.1 The relevant portion of the challenged statute provides as follows:

          (2) A second or subsequent violation of subdivision (a)(1) is a Class A
          misdemeanor. A person who drives a motor vehicle on any public highway of this
          state at a time when the person’s privilege to do so is cancelled, suspended or
          revoked because of a second or subsequent conviction for vehicular assault . . . ,
          vehicular homicide . . . , or driving while intoxicated . . . shall be punished by
          confinement for not less than forty-five days (45) days nor more than one (1) year,
          and there may be imposed, in addition, a fine of not less than three thousand dollars
          ($3,000).

TENN. CODE ANN . § 55-50-504(a) (emphasis added).

        After review, we conclude that the legislature’s failure to establish a maximum fine renders
the statute per se unconstitutional under provisions forbidding excessive fines. Additionally, we
conclude that a fine of $27,500 in the case sub judice is inappropriate in relation to the nature and
gravity of the offense.2 Accordingly, we vacate that portion of the judgment imposing a fine of
$27,500. The fine is modified to reflect a fine of $2,500 pursuant to TENN. CODE ANN . § 40-35-111
(e)(1).

                                                           Analysis

        Large discretion is vested in the legislature in imposing penalties sufficient to prevent the
commission of an offense, and only in extreme cases are the courts warranted in finding that the
constitutional limit has been surpassed. Indeed, the legislature, only restrained by the organic law
of the state and federal government, has the authority to define what acts shall constitute criminal
offenses and what penalties shall be inflicted on offenders. When reviewing a statute for
constitutional infirmity, therefore, we are required to indulge every presumption and resolve every
doubt in favor of the constitutionality of the statute. Petition of Burson, 909 S.W.2d 768, 775 (Tenn.
1995).



          1
            This cause was originally submitted "on brief" to a pane l of th is co urt b ase d up on w heth er th e tri al co urt's
refusal to reduce th e fine was erro r. Finding that the briefs of both parties over looked the true issue befo re the court, this
court ordered supplementation of the briefs with respect to the constitutio nality of T E N N . C ODE A N N . § 55-50-504(a)(2).
See State v. Alvin Ray Taylor, No. M 1999-2 566-CC A-R3-C D (Te nn. Crim. Ap p. at Nashv ille, Aug. 7, 20 00).

          2
            In its suppleme ntal brief, the State argues that “an attack on the c onstitutionality of a sta tute cannot be raised
for the first time upon appeal.” Additionally, the State contends that any challenge to th e constitutiona lity of the statute
is waived since the defendan t did not raise the issue at trial or upon appeal. We believe the State’s argument misplaced.
Tenn. R. Crim. P. 52(b) states that “An error which has affected the substantial rights of an accused may be noticed at
any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the
appellate court where nece ssary to do su bstantial justice.” As such, plain error may b e noticed a nd addr essed by this
court. See Sentencing Comm issions Com ments, Te nn. R. Crim. P . 52.

                                                               -2-
        Resolution of the constitutionality of the statutory provision presently before this court
requires interpretation of both state and federal constitutional provisions. Both the United States and
the Tennessee Constitutions protect individuals from excessive fines. See U.S. CONST . amend. VIII;
TENN. CONST . art. I, § 16. Specifically, the Eighth Amendment provides: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST .
amend. VIII. The United States Supreme Court has interpreted the “excessive fines” clause to
“limit[] the government’s power to extract payments, whether in cash or in kind, as punishment for
some offense.” United States v. Bajakajian, 524 U.S. 321, 328, 118 S. Ct. 2028, 2033 (1998)
(quoting Austin v. United States, 509 U.S. 602, 609-610, 113 S. Ct. 2801, 2805 (1993) (emphasis
deleted)). Thus, not only does the Constitution prohibit barbaric punishments, but also prohibits
fines that are disproportionate to the crime committed. See generally Solem v. Helm, 463 U.S. 277,
284, 103 S. Ct. 3001, 3006 (1983).

        In Solem v. Helm, Justice Powell, writing on behalf of the Court, discussed the historical
foundations of the Eighth Amendment origins. See generally Helm, 463 U.S. at 284-287, 103 S.
Ct. at 3006-3007. The constitutional provision is based upon the principle that punishment should
be proportionate to the crime. This principle is deeply rooted in common law jurisprudence.
Accordingly, when inquiry is made as to the excessiveness of a fine, the standard of measuring its
constitutionality rests on the principle of proportionality. See Bajakajian, 524 U.S. at 334, 118 S.
Ct. at 2036. In other words, “[t]he amount of the [fine] must bear some relationship to the gravity
of the offense that it is designed to punish.” Id. at 334, 118 S. Ct. at 2036 (citations omitted).

        In examining a fine for unconstitutional excessiveness, the United States Supreme Court has
noted that courts must be mindful (1) “that judgments about the appropriate punishment for an
offense belong in the first instance to the legislature” and (2) “that any judicial determination
regarding the gravity of a particular criminal offense will be inherently imprecise.” Bajakajian, 524
U.S at 336, 118 S. Ct. at 2037 (footnotes omitted). With proper consideration of these principles,
the court must then analyze the statute with particular consideration of (1) the gravity of the offense
and the harshness of the penalty; (2) the fines imposed on other criminals in the same jurisdiction;
and (3) sentences imposed for commission of the same crime in other jurisdictions.3 See Helm, 463
U.S. at 291-292, 103 S. Ct. at 3010-3011.



         3
          At this juncture, we acknowledge, as does Judge Witt in his dissenting opinion, that the United States Supreme
Court applied the three-part test to strike the sentence and not the statu te. See Helm , 463 U.S. at 291-292, 103 S. Ct.
at 3010-3 011. W e do not inte rpret Helm , however, to prohibit such analysis in determ ining a statute’s co nstitutionality
under the Eighth A mendm ent. See State v. Williams, 698 P.2d 678, 689 n.4 (Ariz. 19 85) (“T he eighth am endmen t, while
capab le of invalidating statutes which uniform ly, mandate c ruel and unu sual punishm ent, more freq uently, at least in
non-death penalty situations, is applied to examinations of individual sentences.” (Emphasis added)). Indeed, the Helm
factors have been previo usly employed in such statutory analysis. Fo r example , although no t controlling law , a
Massac husetts Appellate Court de cision applied the same three-part test adopted by the Supreme Court in Helm in
analyzing whether a statute proscribing a mandatory five-year sentence imposed for the sale of heroin was constitutional
under the Eighth A mendm ent. See Commonwealth v. Marcus , 454 N.E.2d 1277 (Mass. A pp. Ct. 19 83). Moreover, by
reviewing, on appe al, every fine in excess of $3,000 for this offense, we will, in effect, be treating the symptoms rather
than the cause and, thus, promoting protracted litigation of this issue.

                                                            -3-
        Our first consideration requires comparison of the amount of the fine to the gravity of the
offense. Bajakajian, 524 U.S. at 336-337, 118 S. Ct. at 2037-2038 . Driving on a revoked or
suspended license, second offense, is graded by our legislature as a class A misdemeanor.4 See
TENN. CODE ANN . § 55-50-504 (a)(2)(1998). The offense is neither a violent offense nor an offense
against a person. Rather, the offense reflects the legislature’s prerogative to sanction a penalty
against persons for violating a previously imposed driving restriction. The legislature has authorized
a fine of “not less than three thousand dollars” for a second infraction of this misdemeanor
offense.5 See TENN. CODE ANN . § 55-50-504(a)(2) (emphasis added). The disparity between the
nature of the offense and the fine imposed, at a minimum, suggests a lack of proportionality in the
sentence.

        Our second inquiry compares the fine imposed for the offense of driving on a revoked or
suspended license, second offense, with fines imposed for the commission of other crimes in the
State of Tennessee. Generally, the legislature has authorized a “fine not to exceed two thousand
five hundred dollars” for class A misdemeanors.6 See TENN. CODE ANN § 40-35-111)(e)(1) (1997)


          4
           T E N N . C ODE A N N . § 55-50-504 provides in pertinent parts:
          (a)(1) A person who drives a motor vehicle on any public highway of this state at a time whe n the
          person’s privilege to d o so is cance lled, suspend ed, or revo ked com mits a Class B m isdemean or. A
          person who drives a motor vehicle . . . at a time when the person’s privilege to do so is cancelled,
          suspended or revoke d becau se of a conv iction for vehic ular assault . . . , vehicular homicide . . ., or
          driving while intoxicate d . . . shall be punish ed by con finement for no t less than two (2 ) days nor more
          than (6) month s, and there m ay be impo sed, in add ition, a fine of not more than one thousand
          dollars ($1,000).

          (2) A second or subsequent violation of sub division (a)(1 ) is a Class A m isdemean or. A person who
          drives a motor ve hicle on any p ublic highwa y of this state at a time when the person’s privilege to do
          so is cancelled, suspended or revoked because of a second or subsequent conviction for vehic ular
          assault . . . , vehicular homicide . . . , or driving while intoxicated . . . shall be punished by confinement
          for not less than fo rty-five days (45 ) days nor m ore than on e (1) year, an d there ma y be impo sed, in
          addition, a fine of not less than three thousand dollars ($3,000).

(Emphasis added).

          5
           W e note that the legisla ture amend ed the fine pro visions of T E N N . C ODE A N N . § 55-50-504(a)(1) & (2) in 1994.
Prior to this amendment, these particular provisions provided that (1) for first offense driving on a cancelled, suspended,
or revoked license, a fine of “ not more than five hundred do llars ($500)” could be imposed; and (2) for a second or
subsequent offense driving on a cancelled, suspended, or revoked license, a fine of “not more than five hundred dollars
($500)” could be imposed. See T E N N . C ODE A N N . § 55-50-504(a)(1) & (2) (1993) (emp hasis added). The legislative
history indicate s that the initial bill introd uced in the Senate contained the language “a fine not less than $2,500 nor
more than $5,000." (emphasis added). This langua ge was ame nded sev eral times in the H ouse, which u ltimately
provided for the curren t language, “a fine of not less than three thousand dollars ($3,000).” (emphas is added) . The
legislative history reflects no reference to the then existing language.

          6
           Our legislature has authorized the follow ing fines for felonies and misdemeano rs:
          (b)(1) Cla ss A felony . . . .the jury m ay assess a fine no t to exceed fifty thousand ($5 0,000). . . .
             (2) Class B felony . . . the jury may assess a fine not to exceed twen ty-five thousand dollars
                                                                                                                   (continued ...)

                                                               -4-
(emphasis added). Additionally, the fine imposed for a first infraction of driving on a revoked
license shall “not [be] more than one thousand dollars.” (emphasis added). TENN. CODE ANN .
§ 55-50-504(a)(1). Indeed, the more serious offense of driving under the influence carries a fine of
“not less than three hundred fifty dollars ($350) nor more than one thousand five-hundred dollars
($1,500)” for a first offense; a fine of “not less than six hundred dollars ($600) nor more than three
thousand five hundred dollars ($3,500)” for a second offense; a fine of “not less than one thousand
one hundred dollars ($1,100) nor more than ten thousand dollars ($10,000)” for a third offense; and
a fine of “not less than three thousand dollars ($3,000) nor more than fifteen thousand dollars
($15,000)” for a felony fourth offense. See generally TENN. CODE ANN . § 55-10-403(a)(1). A fine
imposed for a second offense driving on revoked, a class A misdemeanor, therefore, has the
potential, as no statutory maximum limit to the fine exists, to surpass fines imposed for similar but
more serious offenses. Indeed, it is noted that the fine provisions for this class A misdemeanor
permits imposition of a fine in excess of that which may be imposed upon a defendant convicted of
a class A felony. See TENN. CODE ANN . § 40-35-111 (b)(1) (fine for class A felony not to exceed
fifty thousand dollars).

        Our third and final consideration compares the contested statutory fine with fines imposed
for commission of the same crimes in other jurisdictions. From a review of similar offenses in other
states, we have determined that most states imposed maximum fines that are less than the statutorily
imposed minimum fine imposed in Tennessee. See, e.g., ALASKA STAT . § 28.15.291(b)(1)(C)
(mandatory fine of $500 for driving on revoked license); ALA . CODE § 32-6-19 (fine of not less than
$100 nor more than $500 authorized for driving on revoked license); ARK. CODE ANN . § 27-16-303
(fine for driving on revoked license “not more than $500"); CAL. VEHICLE CODE § 14601.1(b)(1)
(fine for second offense driving on revoked license not less than $500 nor more than $2,000); GA .
CODE ANN . § 40-5-121(a) (fine of not less than $1,000 nor more than $2,500 authorized for second
offense driving on revoked license); 625 ILL. COMP. STAT . 5/6-303 (statute does not expressly
enumerate fine for driving on revoked license other than enumerating offense class A misdemeanor);
IOWA CODE § 321.218 (fine of not less than $250 and not more than $1,000 authorized for offense
of driving on revoked license); MICH. COMP. LAWS § 257.904 (fine of not more than $1,000


         6
             (...continued)
              ($25,00 0). . . .
               (3) Class C felony . . . the jury may assess a fine not to excee d ten thousa nd dollars ( $10,00 0). . .
         .
              (4) Class D felo ny . . . the jury may asse ss a fine not to ex ceed five tho usand do llars ($5,00 0). . .
         .
              (5) Class E felony . . . the jury may assess a fine not to exceed thr ee thousand dollars ($3 ,000). .
         ..

         (e)(1) Class A misd emeano r . . . a fine not to exce ed two tho usand five hu ndred d ollars ($2,5 00). .
         ..
            (2) Class B misdeme anor . . . a fine not e xceed five h undred d ollars ($50 0). . . .
            (3) Class C m isdemean or . . . a fine not to ex ceed fifty dollar s ($50.0 0). . . .

T E N N . C ODE A N N . § 40-35-111(b) & (e).

                                                                -5-
authorized for driving on revoked license, second offense); MISS. CODE ANN . § 63-1-57 (fine of not
less than $200 and not more than $500 authorized for offense of driving on revoked license); N.J.
STAT . ANN . § 39:3-40 (fine of $750 for second offense driving on revoked license); N.M. STAT .
ANN . § 66-5-39 (fine not to exceed $1,000 for driving on revoked license); OKLA . STAT . tit. 47 § 6-
303 (fine of not less than $100 nor more than $500 authorized for driving on revoked license); R.I.
GEN . LAWS § 31-11-18.1 (mandatory $500 fine for second offense driving on revoked license); WYO .
STAT . ANN . § 31-7-134 (fine of not less than $250 and not more than $750 authorized for second
offense driving on revoked license).

         In reaching our conclusion, we acknowledge the broad deference afforded to our legislature
in determining criminal offenses and the penalties and punishments assigned thereto. However,
based on our analysis of the factors enumerated in Solem v. Helm, we conclude that the legislature’s
failure to establish a maximum authorized fine for the offense of driving under the influence, second
offense, results in a fine which is, per se, disproportionately harsh when compared with (1) the
gravity of the offense, (2) the fines that may be imposed for similar offenses in this state, and (3) the
fines imposed for the same/similar offenses in other jurisdictions. Specifically, we hold that a statute
which provides a minimum fine with no maximum limit constitutes “excessive punishment” and,
thus, is unconstitutional. Cf. State v. LeCompte, 406 So.2d 1300, 1304 (La. 1981).
Notwithstanding this holding, the statute itself remains valid. We hold unconstitutional only that
portion of the statute which provides for no maximum fine.7

        The failure of the legislature to prescribe a statutory maximum fine for the offense of driving
on revoked, second offense, not only creates a per se unconstitutional punishment, but, as illustrated
by the $27,500 fine imposed in this case, creates the opportunity for abuse by the trier of fact.8 There
is no rational explanation for the imposition of such a disproportionate fine considering that the
maximum fine for driving on revoked, first offense, may not exceed one thousand dollars ($1,000).
As previously noted, the imposition of a $27,500 fine for this class A misdemeanor offense falls


         7
          The doctrine of elision permits a court to strike an unconstitutional portion of a statute and to fi nd the
remaining provisions c onstitutional. See Lowe’s Co mpanies, In c. v. Cardw ell, 813 S.W.2d 428 (Tenn. 1991). Although
disfavored by the courts, the rule of elision app lies:
         if it is made to ap pear from the face of th e statute that the legislature would have enacted [the
         provision] with the objectionable features omitted, and those portions of the statute which are not
         objectio nable will be held valid an d enforce able, ... provided, of course, there is left enough of the act
         for a comp lete law capa ble of enforc ement and fairly answering the object of its p assage.

Franks v. State, 772 S.W.2d 428 , 430 (Tenn.1989) (citations omitted); see also Nolic huckey Sand Co., Inc. v.
Huddleston, 896 S.W .2d 782 , 789 (Tenn. App. 1994 ). In the present case, we are without doubt that the statutory
provisions would have been enacted regardless of the penalty provision for driving on a revoked license, second offense.
Accordingly, we apply the doctrine of elision in striking the fine provision of Tenn. Code Ann. § 55-50-504(a)(2).


         8
         By holding the fine provision unconstitutional, we find it unnecessary to address the concern of whether the
“open-ended” fine provision fails to “give fair warning of the consequences of violation,” required by Tenn. Code Ann.
§ 39-11-101(3) (Objectives of criminal code).

                                                          -6-
within the range of fines which may be imposed upon class A felons. See TENN. CODE ANN . § 40-
35-111 (b)(1) and (2).

        For the reasons herein, we hold the fine provision of TENN. CODE ANN . § 55-50-504(a)(2)
unconstitutional insofar as the provision establishes a constitutionally disproportionate punishment
for the offense of an excessive degree. Moreover, the fine imposed in the case sub judice is grossly
disproportionate compared to fines imposed for similar offenses. Accordingly, the trial court’s
judgment imposing a fine in the amount of $27,500 is vacated. We modify the judgment to reflect
a fine of $2,500.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




                                                -7-
