        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs October 29, 2002

               STATE OF TENNESSEE v. SAMUEL LEE PARTIN

                  Direct Appeal from the Circuit Court for Blount County
                Nos. C-12957, C-13506-13509     D. Kelly Thomas, Jr., Judge



                                No. E2002-00094-CCA-R3-CD
                                     November 15, 2002

The defendant pled guilty to two counts of driving after being declared an habitual motor vehicle
offender and one count each of “third or subsequent” offense DUI, child endangerment, and
vehicular assault, and it was agreed the trial court would determine the sentences. The trial court
imposed a total effective sentence of five years, eleven months, and twenty-eight days in
incarceration. In this appeal, the defendant argues the trial court erred in sentencing him. We
conclude the defendant was indicted for fourth offense DUI, a Class E felony; he pled guilty to the
offense as charged in the indictment, yet the plea erroneously referred to the non-existent
enhancement classification of “third or subsequent” offense DUI rather than fourth offense DUI; and
the defendant was erroneously sentenced for a misdemeanor based upon this non-existent
enhancement classification. Because the defendant’s guilty plea and sentence for this offense were
erroneous and his pleas to all other offenses were part of his agreement to plead guilty, we vacate
all judgments of conviction and remand to the trial court for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Vacated; Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ROBERT W.
WEDEMEYER, J., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public Defender;
and Shawn G. Graham, Assistant District Public Defender (at sentencing hearing), for the appellant,
Samuel Lee Partin.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and John Anderson Bobo, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
                                                      OPINION

       On July 15, 2000, the defendant was arrested for driving after being declared an habitual
motor vehicle offender. On February 16, 2001, while he was on bond for the first offense, the
defendant was involved as a driver in a motor vehicle accident and was charged with driving after
being declared an habitual motor vehicle offender; DUI, fourth offense; child endangerment; and
vehicular assault. On December 3, 2001, he pled guilty to all charges and agreed to submit to
sentencing by the trial court.

         The trial court sentenced the defendant to the following:

 Case               Offense          Offense                      Offense               Sentence
 Number             Date                                          Classification
                                                                  According to
                                                                  the Judgment
 C-12957            7/15/00          Motor Vehicle                Class E Felony        2 years, consecutive to
                                     Habitual Offender                                  C-13508
                                     Violation
 C-13506            2/16/01          DUI                          Class A               11 months, 29 days,
                                                                  Misdemeanor           consecutive to C-129571
 C-13507            2/16/01          Child                        Class A               11 months, 29 days,
                                     Endangerment                 Misdemeanor           consecutive to C-13506
 C-13508            2/16/01          Vehicular Assault            Class D               2 years, consecutive to
                                                                  Felony                C-13506
 C-13509            2/16/01          Motor Vehicle                Class E Felony        2 years, concurrent with
                                     Habitual Offender                                  C-13508
                                     Violation

        Further, the trial court ordered all sentences to be served in incarceration. In this appeal, the
defendant argues he was improperly sentenced. Specifically, he contends the trial court improperly
imposed consecutive sentences and erred by not granting alternative sentencing. However,
following a thorough review of the record, we are forced to conclude the defendant’s guilty plea and
sentence on the DUI indictment were erroneous. Defendant received a Class A misdemeanor
sentence, whereas his guilty plea was to fourth offense DUI which is a Class E felony. For this
reason, we are unable to reach the merits of the issues raised in this appeal and must remand the
matter to the trial court.


         1
          This judgment is silent as to concurrent/consecutive sentencing; however, the record clearly indicates the trial
court intended to run this sentence consecutively to C-12957.

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                                                  ANALYSIS

         The indictment in case number C-13506 alleged the defendant committed DUI, fourth
offense. That indictment specifically alleged the defendant had three prior DUI convictions, which
it listed. The document commemorating the plea agreement, entitled “Request for Acceptance of
Pleas of Guilty [and] Petition to Waive Trial by Jury and to Waive an Appeal,” which was signed
by the defendant, his counsel, the assistant district attorney, and accepted by the trial court, stated
the defendant was charged with and was pleading guilty to “DUI 3 rd or Subsequent” offense with a
maximum sentence of eleven months and twenty-nine days. At the plea hearing, defense counsel
misstated the defendant was charged with “DUI third or subsequent” offense, as opposed to fourth
offense DUI. There is no indication the defendant was pleading to the reduced charge of third
offense DUI; instead, the record indicates the defendant was pleading guilty to the charges as set
forth in the indictment.

          At the sentencing hearing, the three prior DUI convictions listed in the indictment were
established by the evidence, and the trial court noted these prior convictions in sentencing the
defendant. However, the judgment of conviction entered in case number C-13506 incorrectly shows
the defendant was originally charged with Class A misdemeanor DUI; it does not accurately reflect
that the original charge was fourth offense DUI, a Class E felony. See Tenn. Code Ann. § 55-10-
403(a)(1). Likewise, the judgment simply states the defendant was convicted of misdemeanor DUI
and indicates misdemeanor punishment was imposed. The fine imposed was $1,100, which is the
minimum fine for third offense DUI; the minimum fine for fourth offense DUI is $3,000. See id.

        A “fourth or subsequent conviction” for DUI is a Class E felony with a mandatory minimum
sentence of 150 days incarceration and with maximum punishment according to the appropriate
range for a Class E felony. Tenn. Code Ann. § 55-10-403(a)(1). The record indicates the defendant
was a Range I standard offender; therefore, on a Class E felony, he faced a maximum punishment
of two years. See Tenn. Code Ann. § 40-35-112(a)(5).

         We conclude the defendant pled guilty to the non-existent DUI enhancement of “third or
subsequent” offense. Because there is no indication the defendant was pleading guilty to only third
offense DUI as opposed to fourth offense DUI, the misdemeanor classification is erroneous.2 When
the consideration for a guilty plea is an illegal sentence, the guilty plea is invalid and the defendant
is entitled to an opportunity to withdraw his plea. McConnell v. State, 12 S.W.3d 795, 800 (Tenn.
2000). In the case at bar, the defendant’s guilty pleas to all of the charges were simultaneous. There
is no indication whether or not he would have pled guilty to all of the indictments had he known he




         2
           Although we recognize that a sentence of eleven months and twenty-nine days is an authorized punishment
for a Range I standard offender for a Class E felony, see Tenn. Code Ann. § 40-35-211(2), the record reveals that the
parties did not contemplate felony sentencing. Furthermore, the mandatory minimum fine for fourth offense D UI is
$3,000. See Tenn. Code Ann. § 55-10-403 (a)(1). The trial court imposed a fine of $1,100, the mandatory minimum fine
for third offense DU I. Id.

                                                        -3-
was pleading guilty to felony DUI.3 Therefore, we vacate all of his judgments of conviction and
remand this matter to the trial court to allow the defendant the opportunity to withdraw his pleas and
for further proceedings.




                                                                  JOE G. RILEY, JUDGE




         3
           W e note that the reco rd indicates the defendant was on bail for the July 1 5, 20 00, charge when he allegedly
committed the remaining offenses. Therefore, a sentence for a felony, such as DU I-fourth offense, committed while he
was on bail must be served consecutively to any sentence imposed for the prio r offense . See Tenn. Code Ann. § 40-20-
111(b); Tenn. R. Crim. P. 32(c)(3)(C). If a defendant is sentenced for a misdemeanor com mitted while on bail, it is
within the trial court’s discretion to order concurrent sentencing. See id. This is contrary to the understanding of the
parties as reflected by their statements at the plea and sentencing hearings. W e note this for guidance to the parties and
the trial court upon remand.



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