State v. Durso

• Decision Date: 07 February 1983
• Parties: STATE of Tennessee, Appellant, v. David John DURSO, Appellee.
• Court: Tennessee Supreme Court

Page 753

645 S.W.2d 753

STATE of Tennessee, Appellant, v. David John DURSO, Appellee.

Supreme Court of Tennessee.

Feb. 7, 1983.

J. Andrew Hoyal, II, Asst. Atty. Gen., Nashville, for appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.

Robert W. Ritchie, Richard A. Hamra, II, Knoxville, for appellee.

OPINION

HARBISON, Justice.

In this Court the sole question presented is whether the provisions of Article VI, Section 14, of the Tennessee Constitution, requiring that fines in excess of fifty dollars be imposed by a jury, may be waived in a felony case. We are of the opinion that such waiver is permissible. The judgment of the Court of Criminal Appeals to the contrary is reversed.

The issue is important in the administration of criminal law in this state, especially in view of the recently enacted Tennessee Criminal Sentencing Reform Act of 1982, T.C.A. Secs. 40-35-101 to -504. ¹ It is an issue upon which there appears to be diversity of opinion among the bench and bar of the state, including different panels of the Court of Criminal Appeals, one of which reached a conclusion contrary to that of the panel deciding the present case. ²

A. The Instant Case

Appellee, David John Durso, pled guilty to possession of cocaine for resale, the offense having occurred on May 26, 1980. The provisions of T.C.A. Sec. 52-1432(a)(1)(B) made this offense a felony punishable by a penitentiary sentence of from four to ten years and a fine not to exceed fifteen thousand dollars.

Appellee sought unsuccessfully to suppress evidence seized in connection with his arrest. After the suppression hearing, advised by counsel experienced in the criminal practice and procedure of this state, appellee entered a plea of guilty to the charges and waived trial by jury both as to guilt and punishment. The State concurred but agreed that appellee might preserve for appellate review the suppression issue pursuant to Rule 37(b), Tennessee Rules of Criminal Procedure. The trial judge imposed a penitentiary sentence and a fine of $15,000.

The Court of Criminal Appeals affirmed the decision of the trial court with respect to the search question, and this Court denied review.

The Court of Criminal Appeals, however, sua sponte, held that the trial judge sitting without a jury had no jurisdiction to impose a fine in excess of fifty dollars because of the provisions of Article VI, Section 14, of the state constitution. This Court granted review of that issue.

B. The Constitutional Provisions

Contained in the original State Constitution of 1796 and carried forward into all of the subsequent state constitutions is the following provision, now designated Article VI, Section 14:

"No fine shall be laid on any citizen of this State that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars."

Our research has not revealed any comparable provision in the constitutions of the original thirteen states or of any other states admitted to the Union near the time of the admission of Tennessee in 1796 as the third state accepted after the ratification of the United States Constitution. There is no similar provision in that Constitution.

Elsewhere in the state constitution, especially in the Bill of Rights contained in Article I, are fundamental guarantees of individual liberties and rights, including the right to a jury trial ³ and a prohibition against the imposition of "excessive fines." ⁴ There are other restrictions, growing out of the colonial experience, limiting the charge of the judge to the jury. ⁵

While our research has revealed little by way of comparable provisions to Article VI, Section 14, in other states, the article itself has been construed many times by the courts of this state. Something of its history and purpose appears in some of these decisions. In France v. State, 65 Tenn. 478 (1873), the Court stated that the provisions of this article were "manifestly an amplification of the provision contained in sec. 16, art. 1, against the imposition of excessive fines." 65 Tenn. at 485. The Court referred to a similar provision in the English Bill of Rights and quoted Blackstone as stating that origin of that provision had to do with "some unprecedented proceedings in the Court of Kings' Bench, in the reign of King James II." Ibid.

In that case the Court stated that the provision was "aimed at the abuse of the unlimited power of courts in respect to fines," but was not intended as a limitation upon the power of legislation. 65 Tenn. at 486. The Court construed the provision as applying only to cases where discretion is given as to the amount of the fine and as not applying to cases where the General Assembly has peremptorily fixed a fine at a specific amount.

Probably the leading case construing this constitutional provision is Metzner v. State, 128 Tenn. 45, 157 S.W. 69 (1913). In that case the accused was tried before a circuit judge without a jury, found guilty, and given a jail sentence and a fine of four hundred dollars. This Court remitted the fine to fifty dollars and rejected the insistence of the State that the accused, having waived a jury trial, had also waived the provisions of this article, thereby enabling the trial judge to become "vested with all the functions and powers of a jury," including the imposition of any fine which the jury might have imposed. 128 Tenn. at 46, 157 S.W. at 69.

Holding to the contrary, the Court said:

"The section of the constitution quoted seems to confer upon a jury the exclusive right of assessing a fine in excess of $50. The language is that no fine exceeding that amount shall be imposed, unless assessed by a jury.

"In our opinion, this constitutional provision withholds from the court or judge the right to inflict fines exceeding $50, and confers upon the jury exclusive power or jurisdiction to impose fines above that sum.

....

"This is a matter of jurisdiction. Jurisdiction is conferred by law, and cannot be conferred by consent.

"Power or jurisdiction to inflict a fine exceeding $50 having been by law conferred upon a jury alone, and withheld from the judges, no waiver or consent of parties can be invoked to endow a judge with this jurisdiction." 128 Tenn. at 47, 157 S.W. at 69-70.

No authority was cited by the Court for this statement, but the Court continued its opinion with the following, which seemingly was a predicate for the decision:

"In all jurisdictions, practically, it is held that a defendant cannot waive a jury trial in a felony case. The strongest reason given for this rule is that a jury is an essential part of the Court having jurisdiction to try such offenses, and such jurisdiction cannot be conferred by consent of parties upon a court organized without a jury." 128 Tenn. at 48, 157 S.W. at 70.

The holding of the Metzner case has been followed in a long line of subsequent decisions, some of which cited it and some of which did not. These cases arose in many different contexts, some involving misdemeanors, some felonies, some where there was a waiver of jury trial and others where this did not occur. In State v. White, 132 Tenn. 203, 177 S.W. 478 (1915), a statute authorized the imposition of a jail sentence and a fine in excess of one hundred dollars "at the discretion of the court." The word "court" was held to include the trial jury as an integral part thereof. As thus construed the statute was held not to violate the constitutional provision here under consideration. ⁶

In Johnson v. State, 152 Tenn. 184, 274 S.W. 12 (1925), this Court, sua sponte, set aside a fine of two hundred fifty dollars assessed by a judge sitting without a jury by consent, and held that:

"[T]he constitution is violated if the judge fixes the fine at more than $50, and the statute is violated if he fixed it at less than $100. It results that a fine may not be lawfully fixed for a violation of these liquor laws by the judge without a jury verdict." 152 Tenn. at 188, 274 S.W. at 13.

In Upchurch v. State, 153 Tenn. 198, 281 S.W. 462 (1926), there was an unclear record respecting a jury trial, but the verdict as recorded indicated that the trial judge, rather than the jury, imposed a fine of one hundred dollars. This Court said:

"It has never been supposed that judges could lay a fine exceeding $50 under statutes that prescribe a maximum and minimum, from and to which it would be necessary for the courts to exercise a discretion in fixing the amount.

....

"The jurisdiction or power to lay fines exceeding $50 is expressly withheld from the judges and expressly conferred upon the jury. The object of the limitation upon the power to lay fines was to prevent judges from imposing unreasonable fines, and to prevent confiscation of the citizen's substance under the guise of a statute applied by a judicial tribunal. This purpose is clearly expressed and requires no elaboration.

"... The citizen is entitled to the benefit of the protection afforded by the constitution." 153 Tenn. at 204-205, 281 S.W. at 464.

The judgment in the well-known case of Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927), was reversed because the trial judge rather than the trial jury assessed a fine in excess of fifty dollars. It should be emphasized, however, that there was no waiver of a jury trial or of the constitutional provisions involved here in the Scopes case, or in the Upchurch case, supra.

Commenting upon the foregoing authorities, the Court in State ex rel. McMinn v. Murrell, 170 Tenn. 606, 98 S.W.2d 105 (1936), summarized the law as it then stood as follows:

"We take it that a defendant, so far as he is concerned, may waive his right to a jury trial, and may waive his right to demand that proceedings against him be based on an indictment, presentment, or impeachment. These are personal privileges. The defendant cannot, however, by such waiver, confer...