         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 3, 2004

      STATE OF TENNESSEE v. FRANKLIN DARNELL BROWN, JR.

                      Appeal from the Circuit Court for Carroll County
                       Nos. 02CR-1945     C. Creed McGinley, Judge



                 No. W2003-01863-CCA-R3-CD - Filed September 16, 2004



THOMAS T. WOODALL, J., concurring in part and dissenting in part.

         I agree with the majority opinion that application of enhancement factor (14) violates the
ruling in Blakely v. Washington, 542 U.S. _____, 124 S.Ct. 2531 (2004). However, I would remand
for a new sentencing hearing for the trial court to use the only applicable enhancement factor, the
Defendant’s prior convictions. While the trial court did state that the prior convictions “should be
considered very strongly as far as enhancement,” the trial court then immediately stated that
Defendant had to be on probation at the time of the offense which is the subject of this appeal, and
the trial court applied that enhancement factor also.

         Compliance with Blakely may cause some inconvenience for a relatively brief period of time.
However, the United States Supreme Court in Blakely clearly set forth the importance of a jury
determination of any enhancement factor, with the exception of prior convictions. The result may
be the same upon remand and resentencing. However, the Defendant is entitled to be sentenced by
the trial court with the clear understanding that only one enhancement factor, prior convictions, can
be used to enhance the sentence. Since using an enhancement factor in violation of Blakely is a
violation of “a fundamental reservation of power in our constitutional structure,” Blakely, 124 S.Ct.
at 2538-39, and not merely the erroneous application of an inapplicable enhancement factor, I am
reluctant to, in effect, resentence the Defendant to the maximum sentence based upon only one
enhancement factor. There is no way to know, from this record, that the trial court would definitely
have given the maximum sentence without applying enhancement factor (14). Therefore, I would
remand for a resentencing.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE
