State v. Lowe, 9
| Decision Date | 10 June 1991 |
| Docket Number | No. 9,9 |
| Citation | 811 S.W.2d 526 |
| Parties | STATE of Tennessee, Plaintiff/Appellee, v. John Cullen LOWE, Defendant/Appellant. /. 811 S.W.2d 526 |
| Court | Tennessee Supreme Court |
Charles W. Burson, Atty. Gen. & Reporter and Joel W. Perry, Asst. Atty. Gen., Nashville, for defendant/appellant.
W. Mark Ward, Memphis, for plaintiff/appellee.
This appeal raises the question whether an accused has an absolute statutory right to a trial continuance if the state files an untimely notice of its intent to seek an enhanced sentence. We hold that an accused has such a right, and consequently, we vacate the defendant's sentence and remand for a new sentencing hearing.
On September 23, 1988, the Shelby County Grand Jury returned an indictment charging the defendant Lowe with the offense of robbery with a deadly weapon. A trial date was set for August 8, 1989. On August 2, 1989, six days prior to trial, the state filed its notice advising that it would seek an enhanced sentence based upon newly-discovered evidence of the defendant's prior criminal record. On August 7, 1989, the defendant filed a motion for a continuance on the grounds that the defendant had a right, pursuant to Tenn.R.Crim.P. 12.3(a), to ten days' notice of the state's intention to seek an enhanced sentence.
On August 9, 1989, the defendant was convicted of robbery with a deadly weapon and on October 17, 1989, the defendant was sentenced to 50 years imprisonment as a Range II, Class X, persistent offender. The Court of Criminal Appeals held that because the defendant failed to show prejudice, the state's notice was effective; as a result, the Court of Criminal Appeals affirmed the defendant's conviction and sentence. We granted the defendant's application for permission to appeal in this case, to consider whether the right to a continuance after the filing of an untimely Rule 12.3 notice is absolute, or rather is subject to harmless error analysis. We hold that the right is absolute, and that when faced with such a motion for continuance, the trial judge must either strike the notice of enhancement and proceed to trial, or grant a continuance of at least ten days from the date of the entry of the court order resetting the case for trial.
Tennessee Code Annotated, Sec. 40-35-202(a) provides, in pertinent part:
If the district attorney general believes that a defendant should be sentenced as a multiple, persistent or career offender, he shall file a statement thereof with the court and defense counsel not less than ten (10) days before trial or acceptance of a guilty plea;....
Pursuant to this statute, Rule 12.3(a) of the Tennessee Rules of Criminal Procedure provides that "if the notice [required by Tenn.Code Ann. Sec. 40-35-202(a) ] is filed later than this time, the trial judge shall grant the defendant upon his motion a reasonable continuance of the trial." (Emphasis added.) It is academic that the use of the word "shall" in a statute is indicative of a mandatory legislative intent. See Blankenship v. State, 223 Tenn. 158, 443 S.W.2d 442, 445 (1969); Stubbs v. State, 393 S.W.2d 150, 154 (Tenn.1965); Louisville & Nashville R. Co. v. Hammer, 191 Tenn. 700, 236 S.W.2d 971, 973 (1951).
Moreover, the Advisory Commission Comment to Rule 12.3(a) contemplates precisely the same circumstances as the present case, and states the rationale for the mandatory rule:
Subsection (a) requires that written notice under T.C.A. Sec. 40-35-202(a) be filed within ten (10) days of trial. This time limitation will allow defense lawyers an opportunity to plan their trial strategy or engage in appropriate plea negotiations. Nevertheless, since the notice requirement is based to a large extent on a defendant's prior record, this record may only come to light shortly before trial. Under this and related circumstances, it would be unfair...
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State v. Hines
...failed to comply with the clear language of the Rule and that the trial court had erred in not granting a continuance. Cf. State v. Lowe, 811 S.W.2d 526 (Tenn.1991). In light of the unique posture of this case, however, as a continuation of an earlier proceeding and not a new proceeding in ......
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Momon v State
...and statutes without regard to the Fulminante distinction between "trial errors" and "structural defects." In State v. Lowe, 811 S.W.2d 526, 527 (Tenn. 1991), we addressed the issue of whether a denial of a defendant's statutory right to a continuance after the State files an untimely notic......
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State v. Morgan
...period, "the trial judge shall grant the defendant upon his motion a reasonable continuance of the trial." Moreover, in State v. Lowe, 811 S.W.2d 526, 527 (Tenn.1991), in a factual situation analogous to the case before us, our supreme court held that "when faced with such a motion for cont......
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State v. Reaves, No. E2003-01899-CCA-R3-CD (TN 1/27/2005)
...upon proper motion and the trial court must either strike the state's notice of enhancement or grant a continuance. See State v. Lowe, 811 S.W.2d 526 (Tenn. 1991); State v. Morgan, 929 S.W.2d 380 (Tenn. Crim. App. 1996). Moreover, "if notice is filed late or is filed timely but is otherwise......