State v. Dusina

• Decision Date: 30 January 1989
• Parties: STATE of Tennessee, Appellee, v. Eugene DUSINA, Appellant.
• Court: Tennessee Supreme Court

Page 766

764 S.W.2d 766

STATE of Tennessee, Appellee, v. Eugene DUSINA, Appellant.

Supreme Court of Tennessee,

at Knoxville.

Jan. 30, 1989.

Petition to Rehear Denied

Feb. 13, 1989.

Janice Bossing, Asst. Atty. Gen., Charles W. Burson, Atty. Gen. & Reporter, Nashville, for defendant-appellant.

Eugene Dusina, Knoxville, pro se.

Karl F. Dean, Amicus Atty., Paul J. Morrow, Jr., Chairperson, Tennessee Association of Criminal Defense, Lawyers Amicus Committee, Nashville, for plaintiff-appellee.

OPINION

HARBISON, Chief Justice.

In this case the Court of Criminal Appeals found that the appellant had been convicted of speeding pursuant to the general laws proscribing that offense and that he had been fined $50.00 pursuant to T.C.A. § 55-10-301(a). That section authorizes a fine of from $2.00 to $50.00 for speeding and confinement for not more than thirty days, or both. The Court of Criminal Appeals held that the offense was a "small offense" so that the appellant was not entitled to a trial by jury as he had demanded. The Court of Criminal Appeals in this case, as in previous cases, adopted a definition of "small offenses" as utilized by federal courts interpreting the United States Constitution. This standard is different from that obtaining under state law. This Court granted review primarily to consider that issue.

Upon examination of the record, however, it is rather clear that the appellant was not charged or convicted under the general laws pertaining to speeding but under special statutes dealing with traffic on interstate highways. In the general sessions court the judgment stated that he was fined under T.C.A. § 55-8-152 for speeding on an interstate highway. At the trial in the criminal court the prosecutor reiterated that the trial was being held under the provisions of that statute, and the citation issued to the appellant charged that he was driving on an interstate highway at a speed of 70 miles per hour in a 55-mile zone on September 27, 1986.

Under the terms of that statute, T.C.A. § 55-8-152(g), only a fine of from $2.00 to $50.00 is authorized under the circumstances stated in the citation and established by the evidence. Conviction for driving on an interstate highway at a speed greater than 55 miles per hour but less than 75 miles per hour carries a fine of not more than $50.00, without costs, and without reporting to the Department of Safety and without any requirement that the offender be directed to attend the driver education courses as may be ordered under the general penalties for speeding in T.C.A. § 55-10-301. Nor does a conviction for such speeding result in suspension or revocation of the operator's license unless the excess speed is such as to constitute reckless driving. There was no charge of reckless driving. A fine of $10.00 without costs was imposed in the general sessions court. In the criminal court a fine of $50.00 was levied, but costs were not assessed against the appellant.

It thus appears that appellant was not convicted under the general speeding statutes. Since the statute under which he was convicted did not carry any term of imprisonment or a fine in excess of $50.00, under the general definition of the term in this state the offense was indeed a "small offense" for which appellant was not entitled to a trial by jury. We have considered all of the other issues raised by the appellant in the Court of Criminal Appeals and preserved here, but find none of them to have merit.

We respectfully disagree with the Court of Criminal Appeals, however, in its decision in this case and in the case of Robinson v. Gaines, 725 S.W.2d 692 (Tenn.Crim.App.1986) that a "small offense" under Tennessee law can include a term of imprisonment up to six months. In the two cases the Court of Criminal Appeals adopted the definition of a small offense under the United States Constitution as interpreted by the United States Supreme Court. This definition includes offenses in which there may not be a fine in excess of $50.00 or a jail sentence of more than six months. In such cases the United States Supreme Court has held that there is no right to a trial by jury under the federal constitution. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Blum v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1967).

The term "small offense" has traditionally been defined in Tennessee as one in which the punishment cannot exceed a fine of $50.00 and which carries no confinement in a jail or workhouse. The term was so defined in 1847-48 Tenn. Public Acts, ch. 55. That definition remained in the statutes, codified as T.C.A. § 40-408, until the adoption of the Tennessee Rules of Criminal Procedure in 1978. The statute was repealed by 1979 Tenn. Public Acts, ch. 399, following the adoption of the rules, as were a number of other statutes. The statutory definition of a small offense, however, was incorporated by reference and carried forward in the provisions of Rule 5(b) of the Rules of Criminal Procedure.

Article I, Section 6 of...