Stiner v. Musick , 571 S.W.2d 149 ( 1978 )

OPINION

COOPER, Justice.

This appeal turns on the question of whether a conviction and a six month sentence imposed in federal court disqualifies a person from holding office under this State.

In May, 1977, the appellant, Max Stiner, was convicted of aiding and abetting mail fraud as proscribed by 18 U.S.C. §§ 2, 1341 (1964), a felony under federal law.¹ He was sentenced to six months imprisonment, which he served at the Federal Prison Camp at Maxwell Air Force Base, Maxwell, Alabama. On March 1, 1978, he filed with the appellees, the Jefferson County Election Commission, a petition which nominated him as a candidate for the office of Trustee of Jefferson County, subject to the Republican primary scheduled for May 2, 1978. The Election Commission refused to place the appellant’s name on the ballot, contending that he was barred from holding public office by the provisions of T.C.A. § 40-2714, which provides as follows:

Every person convicted of a felony and sentenced to the penitentiary, except for manslaughter, is also disqualified from holding any office under this State, [emphasis supplied]

The appellant brought this action, seeking to enjoin the appellees from refusing to place his name on the ballot for the Republican primary, and to obtain a declaratory judgment that he is not disqualified from holding office by virtue of T.C.A. § 40-2714. The chancellor found that he is disqualified, and this appeal ensued.

The statute in question sets forth two conditions, each of which must be satisfied before the penalty attaches: First, the individual must have been convicted of a felony, and, secondly, he must have been sentenced to the penitentiary. It is not clear what, if any, application the legislature intended T.C.A. § 40-2714 to have to persons convicted and sentenced under federal law. It is, for instance, less than obvious that “felony” and “penitentiary” as used in the statute may be construed so as to include felonies under federal law and penal institutions in the federal system, respectively. See T.C.A. § 41 — 101; Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9 (1948); State v. DuBose, 88 Tenn. 753, 13 S.W. 1088 (1890); Crothers v. Jones, 239 La. 800, 120 So.2d 248 (1960). Compare cases cited, Annot., 39 A.L.R.3d 303. This is particularly true given the difference in both the significance and the purpose of the commitment of a convicted felon to an institution denominated a “penitentiary” in the federal as contrasted with our state system. Compare, e. g, T.C.A. § 40-2703, § 41-101 with 18 U.S.C. §§ 4082, 4083. See also United States v. Ramirez, 556 F.2d 909 (9th Cir.1976). However, assuming that such a construction is possible, we nonetheless believe that the statute is not applicable to the appellant or to those similarly situated. As we noted above, for the prohibition of § 40 — 2714 to apply the individual in question must have been sentenced to the penitentiary. Implicit in this criterion for a person convicted in state court is the further condition that he be sentenced to a term of one year or more, for persons sentenced to a lesser term cannot be sentenced to the state penitentiary. T.C.A. § 40-2703. We cannot believe that the legislature intended that a greater disability should result from a conviction and sentence in federal court than could have resulted had the same sentence been imposed in a court of this State.² Therefore, we hold that the civil disability imposed by T.C.A. § 40-2714 does not attach when a person is convicted of a crime in federal court and receives a sentence of less than one year.

In the instant case, the appellant was sentenced to a term of six months. Perforce, he is not barred from holding office under this State by the provisions of T.C.A. § 40-2714. In so far as it held to the contrary, the chancellor’s decree is reversed.

The costs of this cause will be taxed to the appellees.

HARBISON, J., and W. I. DAVIS, Special Judge, concur. HENRY, C. J., and FONES, J., dissent.

1 . Congress has passed several statutes that exclude persons convicted of specified offenses from holding a federal office. See Vand.L.Rev. 929, 990 for partial list of such statutes. However, the denial of the right to hold federal office is not a part of the punishment prescribed for conviction of the offense of aiding and abetting mail fraud. See 18 U.S.C. §§ 2, 1341 (1964).

2 . See Collateral Consequences of Criminal Conviction, 23 Vand.L.Rev., 929, wherein it is pointed out on page 964 that “[b]oth the Model Penal Code and the Uniform Act on the Status of convicted Persons state that the forum should use its own laws to characterize crimes so that the civil disability statutes of the forum state are applicable to foreign convictions only if the offense in question is a disabling crime under the laws of the forum State.” Model Penal Code § 306.2(1) (Proposed Off. Draft 1962); Uniform Act on Status of Convicted Persons § 1 in Handbook of the National Conference of Commissioners on Uniform State Laws 295-97 (1964).