         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 1, 2002

                  STATE OF TENNESSEE v. JOHN L. SHELTON

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 01-06311   James C. Beasley, Jr., Judge



                  No. W2002-00127-CCA-R3-CD - Filed February 12, 2003


The defendant, John L. Shelton, pled guilty to driving after having been declared a motor vehicle
habitual offender, and was sentenced to one day in jail and a fine of one dollar. The State appealed,
arguing that the sentence was illegal. Following our review, we affirm the judgment of the trial
court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michael S. Davis, Assistant District Attorney
General, for the appellant, State of Tennessee.

Steven M. Temple, Memphis, Tennessee, for the appellee, John L. Shelton.

                                             OPINION

                                              FACTS

        The defendant was declared to be a motor vehicle habitual offender on November 9, 1990;
and, on January 25, 2001, he was ticketed after running a red light with the vehicle he was operating.
Subsequently, he was indicted for violating Tennessee Code Annotated section 55-10-616. He
entered a plea of guilty to this offense and was sentenced to one day in jail and a one dollar fine.

                                            ANALYSIS

                                           I. Sentencing

       The motor vehicle habitual offender (“MVHO”) statute provides as follows:
               Driving while restriction in effect – Class E felony.

                        (a) It is unlawful for any person to operate any motor vehicle
               in this state while the judgment or order of the court prohibiting the
               operation remains in effect.

                      (b) Any person found to be an habitual offender under the
               provisions of this part who thereafter is convicted of operating a
               motor vehicle in this state while the judgment or order of the court
               prohibiting such operation is in effect commits a Class E felony.

                       (c) The court has no power to suspend any such sentence or
               fine, except that in cases where such operation is necessitated in
               situations of apparent extreme emergency which require such
               operation to save life or limb, the sentence or any part thereof or fine
               or any part thereof may be suspended by the court, in its discretion.

Tenn. Code Ann. § 55-10-616 (1998).

        Thus, operation of a vehicle by a person previously declared to be an habitual offender is
punishable as a Class E felony, the punishment for which is set out in Tennessee Code Annotated
section 40-35-112(a)(5) as “not less than one (1) nor more than two (2) years.” The State timely
appealed the sentence, arguing that, because the defendant had pled guilty to a Class E felony, the
minimum sentence was one year. The defendant responds that the State cannot appeal the sentence
because its claim is not within the enumerated bases for a State’s appeal, as set out in Tennessee
Code Annotated section 40-35-402:

                        (a) The district attorney general in a criminal case may appeal
               from the length, range or manner of the service of the sentence
               imposed by the sentencing court. The district attorney general may
               also appeal the imposition of concurrent sentences. In addition, the
               district attorney general may also appeal the amount of fines and
               restitution imposed by the sentencing court. An appeal pursuant to
               this section shall be taken within the same time and in the same
               manner as other appeals in criminal cases. The right of the appeal of
               the state is independent of the defendant's right of appeal.

                       (b) An appeal from a sentence is limited to one (1) or more of
               the following conditions:

                      (1) The court improperly sentenced the defendant to the wrong
               sentence range;



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                             (2) The court granted all or part of the sentence on probation;

                         (3) The court ordered all or part of the sentences to run
                  concurrently;

                         (4) The court improperly found the defendant to be an
                  especially mitigated offender;

                         (5) The enhancement and mitigating factors were not weighed
                  properly;

                             (6) The court failed to impose the fines recommended by the
                  jury; or

                           (7) The court failed to order the defendant to make reasonable
                  restitution.

        As we understand the State’s argument on appeal, the trial court improperly sentenced the
defendant, a one-day sentence being available only “if the trial court suspended the defendant’s
sentence nearly in its entirety.” According to the State, the minimum to which the defendant could
be sentenced was one year, that being the minimum punishment for a motor vehicle habitual offender
found to be operating a vehicle, as provided by Tennessee Code Annotated section 55-10-616. We
agree that Tennessee Code Annotated section 40-35-402(a) authorizes state appeals to challenge the
length of a sentence, and we conclude that the limitations of state appeals set forth in section 40-35-
402(b) do not clearly prevent a state challenge to the length of a sentence imposed by the trial court.1
However, having so concluded, we determine that the State’s argument is without merit. The
problem with the State’s claim is that Tennessee Code Annotated section 40-35-211(2) provides that
an E felony, of which the defendant was convicted, may be punishable by confinement for less than
a year, as the trial court did in this matter:

                          If the minimum punishment for any offense is imprisonment
                  in the penitentiary for one (1) year, but in the opinion of the court the
                  offense merits a lesser punishment, the defendant may be sentenced
                  to the local jail or workhouse for any period less than one (1) year,
                  except as otherwise provided.

Tenn. Code Ann. § 40-35-211(2) (1997).



         1
           It is not clea r from the record that the State did not agree that the defendant’s punishment should be
incarceration for one day and a fine of one dollar, the Petition for Waiver of Trial by Jury and Request for Acceptance
of Plea of Guilty, which was signed by both counsel, having this provision. However, since this claim has not been raised
on ap peal, we will pre sume that the State did not agree to this punishment.

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      This court reviewed and disagreed with a similar claim by the prosecution in State v. Hayes,
894 S.W.2d 298, 300-01 (Tenn. Crim. App. 1994), that a sentence of six months in the workhouse
as a MVHO was illegal:

               [W]e assume that the state, by contending that the sentence should be
               increased to the “statutory minimum,” is asserting that the trial court
               imposed an illegal sentence. However, given the fact that the
               defendant's offense is a Class E felony for which the defendant, as a
               Range I, standard offender, was exposed to a minimum punishment
               of one year, see T.C.A. §§ 40-35-111(b)(5) and -112(a)(5), the trial
               court was entitled to sentence him to the workhouse for any period
               less than one year if the offense so merited. T.C.A. § 40-35-211(2).
               Thus, the six-month workhouse sentence is not illegal.

Id. at 301.

        In contrast to Tennessee Code Annotated section 55-10-403(a), providing that a “fourth or
subsequent [DUI] conviction shall be a Class E felony punishable . . . by confinement for not less
than one hundred fifty (150) consecutive days, to be served day for day,” the MVHO statute does not
require that a minimum period be served, only that a violation is punishable as a Class E felony.
However, “a day and a dollar” being within the permissible range of punishment for violation of a
Class E felony, we conclude that the defendant was not illegally sentenced.

                                          CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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