Moss v. State
| Decision Date | 27 December 1978 |
| Citation | 584 S.W.2d 220 |
| Parties | James M. MOSS, alias, Appellant, v. STATE of Tennessee, Appellee. 584 S.W.2d 220 |
| Court | Tennessee Court of Criminal Appeals |
Thomas M. McAdams, Knoxville, for appellant.
William M. Leech, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for appellee.
On December 5, 1977, in Knox County, Tennessee, the appellant was arrested and charged with driving a motor vehicle while under the influence of an intoxicant. The warrant shows the trial set for January 6, 1978, at 1:00 p. m. The warrant lists the judgment of conviction as, "This 5th day of Dec. 1977, J. K. Watson, Judge, General Sessions Court". The appellant was fined $50.00 and sentenced to eleven months and twenty-nine days in the workhouse. To the side of the warrant is written, "to spend 11 mos.-29 days on charge as of 3-21-78 per order of Judge Creekmore". Over the date of December 5, 1977, has been written the date of March 21, 1978. There is also a notation at the top of the warrant, "appealed 3/31/78". A waiver was signed by the appellant in keeping with § 40-423 T.C.A. There is no controversy the above judgment was suspended by Judge Watson on December 5, 1977.
On or about February 17, 1978, in Knox County, the appellant was again arrested and charged with driving a motor vehicle while under the influence of an intoxicant and violating the driver's license law. He signed a waiver, pleaded not guilty, and was tried and convicted by Judge Creekmore. He appealed his convictions on the February 17th charges. We are not concerned with these appeals except that they caused Judge Creekmore to revoke the suspended sentence.
The appellant's position is that he is not guilty of the February 17th offenses and he seeks a hearing de novo in the Criminal Court of Knox County. Defense counsel clearly stated:
(B.E. at page 7, line 3 through 11)
"We had no objection with the original thing and so wouldn't appeal from that, but when it was revoked we had the objection." (B.E. at page 7, line 17, 18 and 19)
On June 20, 1978, the Judge of Division I, Criminal Court for Knox County, dismissed the appeal on the revocation for the lack of jurisdiction. The appellant excepted and was granted an appeal. The trial judge would not set an appearance bond because of the lack of jurisdiction.
Did the appellant have the right to appeal the revocation of his suspended sentence? Did the Criminal Court of Knox County have jurisdiction to hear the appeal? We think the answer is "yes" to both questions.
The Court of General Sessions statutory authority for suspending a sentence, as well as the revocation thereof, is § 16-1104 T.C.A. (2nd para.)
"They shall also have the same jurisdiction relative to the suspension and revocation of sentences imposed by them as that conferred upon all trial judges by Chapter 29, of title 40 of this Code."
It is conceded appellant accepted the suspended sentence, and the revocation by Judge Creekmore was procedurally acceptable. The factual basis for the revocation has been continually contested. The Court of General Sessions found the issues against the appellant. He was apparently granted an appeal under § 40-426 T.C.A. This was by statute, to:
The State insists the jurisdiction to suspend and revoke sentences does not grant the appellant the right to appeal relying upon Jefferson v. State, 222 Tenn. 413, 436 S.W.2d 437 and Atchley v. State, 176 Tenn. 514, 144 S.W.2d 748. In Jefferson v. State, supra, the court was dealing with a bond hearing in a capital case and a demurrer filed under § 40-1205 T.C.A. The right to bail enactments had failed to set out a method whereby the action of any court in denying bail could be reviewed by an appellate court (in Jefferson's case, the Criminal Court). The act establishing the Court of General Sessions Does provide for an appellate review.
The State further insists that since the act authorizing Judges of Court of General Sessions to suspend and revoke sentences is in derogation of the common law, it must be strictly construed so as to confer only such powers as are plainly within the expressed terms or necessary implications of the act. Atchley v. State, 176 Tenn. 514, 144 S.W.2d 748. We do not agree with the State's position that § 16-1104 T.C.A., granting jurisdiction to the Court of General Sessions to suspend and revoke sentences, does not, under the Atchley Test, grant a right to the defendant to appeal. Section 16-1104 expressly grants the same jurisdiction as trial judges under Chapter 29 of Title 40 of the Code. Since the granting of this jurisdiction to the trial judges, by Chapter 76, Public Acts 1931, the power and authority of the judge has been reviewable to the Supreme Court, as in other criminal cases. (§ 40-2907)
Jurisdiction is defined as:
"A Term of large and comprehensive import, and embraces every kind of judicial action."
"It is the authority by which courts and judicial officers takes cognizance of and decide cases." Black's Law Dictionary, 4th Ed.
It is illogical to allow an appellate review of a decision in a trial court and not allow an equivalent review in a court exercising the "same jurisdiction". A statute will not be construed to alter the common law any further than the act expressly declares or than is necessarily implied considering the subject matter. Lillienkamp v. Rippetoe, 133 Tenn. 57, 179 S.W. 628 citing Parlow v. Turner, 132 Tenn. 339, 178 S.W. 766. The right to an appeal "lay implicitly within the clause quoted." Parlow v. Turner, supra.
The State cites Practy v. State, Tenn.Cr.App., 525 S.W.2d 677, as authority supporting the appellant's lack of a right to appeal. Practy concerned a Criminal Court case. It did not involve the Court of General Sessions. An argument was made that a preliminary hearing on his revocation petition could have been held in the...
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State v. Parrish
...as are applicable to the city courts. The offense in the instant case falls within this ambit. In the case of Moss v. State, 584 S.W.2d 220 (Tenn.Crim.App.1978), this Court held, in an opinion by Judge Cornelius, that an appeal from the General Sessions Court of the revocation of a suspende......