Dillingham v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
JIMMY D. DILLINGHAM, )
) C.C.A. No. 03C01-9702-CR-00048
Appellant, )
) Unicoi County
V. )
) Honorable Lynn W . Brown, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee.
FOR THE APPELLANT: FOR THE APPELLEE:
Douglas K. Shults John Knox Walkup
Shults & Shults Attorney General & Reporter
111 Gay Street
P.O. Box 129 Timothy F. Behan
Erwin, TN 37650 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Lisa Nidiffer Rice
Assistant District Attorney General
Unicoi County Courthouse
Erwin, TN 37650
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Jimmy D. Dillingham, was convicted on October 23, 1989,
of attempted bank robbery. On October 31, 1989, he was sentenced to forty
years in the Tennessee Department of Correction. After unsuccessfully
appealing his conviction, he filed a petition seeking post-conviction relief. In his
petition he alleged that the trial court erred in sentencing him under the
Sentencing Reform Act of 1982.1 After hearing arguments from counsel and
reviewing the record, the trial court summarily dismissed the petition. The
appellant challenges this dismissal.
The appellant contends that if he had been sentenced under the
Sentencing Reform Act of 1989, the maximum sentence he could have received
was fifteen years. He claims that if the trial judge had followed normal
scheduling procedures when setting the date for his sentencing hearing, he
would have fallen under the 1989 Act. Furthermore, he argues that the trial
judge violated Tenn. Code Ann. § 40-35-208, which mandates the sentencing
hearing to be scheduled at least [ten] days after the parties receive the
presentence report.2 The appellant alleges that he received the presentence
report one day before the sentencing hearing.
The record before us does not contain the sentencing hearing transcript.
Without this part of the record, we are unable to consider appellant’s allegation
1
The appellant was sentenced under the Sentencing Reform Act of 1982. He claims that he
should have been sentenced under the Sentencing Reform Act of 1989. Under the new Act, the
maximum sentence he could have received for his crime and classification was 15 years.
2
In their respective briefs, both the petitioner and the state cite Code section 40-35-208 for the
proposition that the sentencing hearing must be held at least ten days after the parties receive the
presentence report. We note, however, the former version of section 40-35-208 under which the
petitioner was sentenced allowed for the sentencing hearing to be held five days after the presentence
report was m ade available to the parties. See Tenn. Code Ann. § 40-35-208 (1982) (repeale d 1989).
As a further aside, both the present and former versions of 40-35-208 permit the parties, with the
consent of the court, to waive the otherwise required time period between the presentence report
being made a vailable to the parties and the sentencing hearing. See Tenn. Code Ann. § 40-35-208(1997); Tenn. Code Ann. § 40-35-208 (1982) (repealed 1989).
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of a violation of Tenn. Code Ann. § 40-35-208. It is incumbent upon the
appellant to prepare a record that includes all material necessary for disposition
of his appeal. Tenn. R. App. P. 24(b) & (c); State v. Beech, 844 S.W.2d 585, 588
(Tenn. Crim. App. 1987). Failing to do so results in a waiver of this subissue.
Tenn. R. Ct. Crim. App., Rule 10(b).
It is uncontested that the appellant committed the crime, was convicted,
and sentenced before November 1, 1989. The Sentencing Reform Act of 1989
states that this chapter is applicable to “[a]ll persons who commit crimes on or
after November 1, 1989.” Tenn. Code Ann. § 40-35-117(a) (1990). The trial
court correctly sentenced the appellant under the law in effect at the time of
sentencing. This issue is without merit. The judgment of the trial court is
affirmed.
__________________________
PAUL G. SUMMERS, Judge
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CONCUR:
______________________________
JOSEPH B. JONES, Presiding Judge
______________________________
J. CURWOOD WITT, Jr. Judge
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