            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                                MAY 1997 SESSION

STATE OF TENNESSEE,               *       C.C.A. # 02C01-9701-CC-00013

              Appellee,           *       MADISON COUNTY

VS.                               *       Hon. Franklin Murchison, Judge

DANNY RAY LACY,                    *      (First-degree murder)

              Appellant.           *


                              CONCURRING OPINION

             I concur in the judgment of my colleagues that the sentence and

conviction should be affirmed and write separately only to address whether "double

weighing" (use of the underlying felony as an aggravating circumstance for the

imposition of a greater sentence) is permissible in a life without parole sentence.

The majority correctly notes that in State v. Frederick D. Butler, Dewayne B. Butler,

and Eric D. Alexander, No. 02C01-9604-CR-00128, slip op. at 21 (Tenn. Crim. App.,

at Jackson, March 19, 1997), app. granted, Nov. 3, 1997, our court held that

"double-weighing" is appropriate in these circumstances. I believe, however, that

the reasoning of this court in State v. James Lloyd Julian, II, No. 01C01-9511-CV-

00371, slip op. at 17 (Tenn. Crim. App., at Knoxville, July 24, 1997), perm. to app.

filed, Oct. 30, 1997, is more persuasive. In Julian, Judge David Welles spoke for

the panel: "We do not believe the legislature intended to except those receiving life

without parole from the protections against double enhancement afforded those

receiving death and those receiving lesser sentences." Cf., State v. Middlebrooks,

840 S.W.2d 317 (Tenn. 1992). In my opinion, this view better reflects the intent of

our statutory scheme. See State v. Jones, 883 S.W.2d 597 (Tenn. 1994). I agree,

however, with the conclusion reached by the majority. The sentence should be

affirmed, because no double weighing occurred in this case.

                                          __________________________________
                                          Gary R. Wade, Judge
