Dillingham v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 03C01-9702-CR-00048
• Status: Published

Opinion

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).

-2- 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

-3- CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ J. CURWOOD WITT, Jr. Judge

-4-