State v. Deberry, W2019-01666-SC-R11-CD

CourtSupreme Court of Tennessee
Writing for the CourtSARAH K. CAMPBELL, JUSTICE
Docket NumberW2019-01666-SC-R11-CD
Decision Date30 August 2022



No. W2019-01666-SC-R11-CD

Supreme Court of Tennessee, Jackson

August 30, 2022

Session April 5, 2022

Appeal by Permission from the Court of Criminal Appeals Circuit Court for Madison County No. 19-177 Roy B. Morgan, Jr., Judge

Timing is everything. In this case, at least, that adage holds true. Marvin Maurice Deberry committed a criminal offense and was convicted. But the legislature repealed the statute creating that criminal offense before he was sentenced. Years ago, the legislature enacted a default rule to govern this situation and similar ones. That rule, known as the criminal savings statute, provides generally that an offense must be prosecuted under the law in effect at the time the offense is committed, even if the law is later repealed or amended. See Tenn. Code Ann. § 39-11-112 (2018). If the later-enacted law "provides for a lesser penalty," however, the savings statute dictates that "any punishment imposed shall be in accordance with the subsequent act." Id. At first, the trial court sentenced Deberry under the law in effect at the time of his offense. But Deberry eventually convinced the trial court that the "lesser penalty" exception applied, and the trial court entered an amended judgment retaining Deberry's conviction but imposing no punishment. The Court of Criminal Appeals affirmed. We now reverse and reinstate Deberry's original sentence. We hold that a statute that repeals a criminal offense does not "provide for a lesser penalty" within the meaning of the criminal savings statute. Rather, a person who commits an offense that is later repealed should be convicted and sentenced under the law in effect when the offense was committed unless the legislature provides otherwise.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed; Amended Judgment of the Circuit Court Vacated and Original Judgment Reinstated

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; Ronald L. Coleman, Assistant Attorney General; Jody Pickens, District Attorney General; and April Knight and Eric Wood, Assistant District Attorneys General, for the appellant, State of Tennessee.


Brennan M. Wingerter, Assistant Public Defender - Appellate Director, and Jessica F. Butler, Assistant Public Defender, Tennessee Public Defenders Conference; George Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant Public Defender, for the appellee, Marvin Maurice Deberry.

Sarah K. Campbell, J., delivered the opinion of the court, in which Roger A. Page, C.J., and Sharon G. Lee, Jeffrey S. Bivins, and Holly Kirby, JJ., joined.




Understanding the legal question presented in this appeal requires familiarity with three statutes. The first is the now-repealed Motor Vehicle Habitual Offenders Act-or MVHO Act-which made it a class E felony to operate a vehicle after being declared a motor vehicle habitual offender. Tenn. Code Ann. § 55-10-616 (2017) (repealed 2019). The second is what we call the MVHO Repeal Act, a 2019 law that repealed the MVHO Act and replaced it with a provision explaining how an MVHO can seek reinstatement of a driver's license that was revoked or restricted solely because of the person's MVHO status. Act of May 24, 2019, ch. 486, § 3, 2019 Tenn. Pub. Acts 1496 (codified at Tenn. Code Ann. § 55-10-601 (2020)). The third is the criminal savings statute. The first sentence of that statute provides generally that "[w]hen a penal statute or penal legislative act . . . is repealed or amended by a subsequent legislative act, the offense . . . shall be prosecuted under the act or statute in effect" when the offense was committed. Tenn. Code Ann. § 39-11-112. The second sentence provides an exception to that general rule: "[I]n the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act." Id.

With that statutory background introduced, we now turn to the factual and procedural history of this case. In 2018, law enforcement officers stopped Deberry for driving with a malfunctioning brake light. Deberry was indicted for multiple traffic-related offenses, including driving after being declared an MVHO, in violation of the MVHO Act, Tenn. Code Ann. § 55-10-616(a). On May 15, 2019, a Madison County jury convicted him on all counts and recommended a fine of $1,500 for the MVHO offense.

On May 2, 2019, about two weeks before Deberry was convicted, the Tennessee legislature passed the MVHO Repeal Act. Act of May 24, 2019, ch. 486, § 3, 2019 Tenn. Pub. Acts 1496.[1] The Governor signed that legislation into law on May 24, 2019, and it went into effect on July 1, 2019, about six weeks after Deberry was convicted. Id.


The MVHO Repeal Act accomplished two things. First, it repealed the MVHO Act, including the offense of driving after being declared an MVHO. Id. (stating that the MVHO Act "is amended by deleting the part and substituting instead the following"); see 1A Sutherland Statutory Construction § 23:12 (7th ed.) (Nov. 2021 Update) ("When an amendatory act purports to set out the original act or section as amended . . . all matter omitted from the act or section the amendment purports to amend, is repealed." (footnotes omitted)). Second, it created a process by which an individual whose driver's license was "revoked or restricted due solely to the person's status as [an MVHO] prior to July 1, 2019" may seek reinstatement of that license. Tenn. Code Ann. § 55-10-601. Specifically, an individual

may petition the court that originally made such a finding to reinstate the person's driver license. Upon receiving a petition for a reinstated driver license, the court shall determine whether the person's driver license was subject to revocation or restriction under prior law due solely to the person's status as a motor vehicle habitual offender and, if so, order the reinstatement of the person's driver license. The person may provide a copy of the court's order to the department of safety, which shall then reissue the person's driver license without restriction


Deberry was sentenced on July 8, 2019, one week after the MVHO Repeal Act went into effect. At his sentencing hearing, Deberry noted that the legislature had "recently repealed" the MVHO Act and argued that his punishment should be in accordance with the MVHO Repeal Act because it "essentially gets rid of the penalty" and thus constitutes a "lesser penalty" within the meaning of the criminal savings statute. The trial court disagreed and sentenced Deberry under the MVHO Act to a five-year sentence of split confinement for the MVHO conviction, along with the recommended fine.

Deberry then filed a "Motion for New Trial, Verdict of Acquittal, or Modification of Sentence," in which he repeated his argument that the MVHO Repeal Act "does not . . . provide for any penalty for any criminal conduct." At the motion hearing, Deberry reiterated that his five-year sentence "should be set aside" because the legislature "repealed" the MVHO Act and "no penalty is a lesser penalty." He clarified that he was "not arguing that the conviction should be set aside but just the sentence." The trial court agreed that "no penalty is a lesser penalty," granted Deberry's motion for a reduction of sentence, and entered an amended judgment as to count one reflecting Deberry's MVHO conviction but imposing no sentence.

The State appealed, and the Court of Criminal Appeals affirmed. State v. Deberry, No. W2019-01666-CCA-R3-CD, 2021 WL 1561688, at *9 (Tenn. Crim. App. Apr. 21,


2021), perm. app. granted, (Tenn. Sept. 23, 2021). After concluding that "the parties provide[d] two reasonable statutory interpretations," the court turned to the legislative history of the MVHO Repeal Act to decide whether the legislature "intended to impose a lesser penalty." Id. at *8. Based on the statements of two lawmakers, the court determined that the "legislative history overwhelmingly demonstrates the desire of the Legislature to provide relief to those who would otherwise be subject to greater penalties under the MVHO [Act]." Id.

We granted the State's application for permission to appeal to determine whether a statute that repeals a criminal offense "provides for a lesser penalty" within the meaning of the criminal savings statute.



When a trial court reduces a defendant's sentence under Tennessee Rule of Criminal Procedure 35, we review that decision for abuse of discretion. State v. Tolle, 591 S.W.3d 539, 545 (Tenn. 2019). But to the extent the trial court's decision turns on the interpretation and application of the criminal savings statute, our review is de novo with no presumption of correctness. See id. at 543-46; see also Keen v. State, 398 S.W.3d 594, 599 (Tenn. 2012) ("The construction of a statute and its application to the facts of a particular case present questions of law which we review de novo."). Moreover, a trial court necessarily abuses its discretion when it commits an error of law. Koon v. United States, 518 U.S. 81, 100 (1996).

This Court's role in statutory interpretation is "to determine what a statute means." Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 175 (Tenn. 2008). Specifically, we must decide "how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012). Original public meaning is discerned through consideration of the statutory text in light of "well-established canons of statutory construction." State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008); see also Kisor v. Wilkie, 139 S.Ct. 2400, 2442 (2019) (Gorsuch, J., concurring in the judgment) (noting that judges have employed...

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