State v. Blazer

619 S.W.2d 370, 1981 Tenn. LEXIS 458

• Court: Tennessee Supreme Court
• Decided: July 27, 1981
• Status: Published

Opinions

OPINION

HARBISON, Chief Justice.

In this case appellee, the County Executive of Cocke County, Tennessee, was tried and convicted for a misdemeanor in office. Pursuant to the jury verdict of guilty, he was removed from office in accordance with T.C.A. § 39-3219. His conviction occurred on November 15, 1979.

Appellee appealed to the Court of Criminal Appeals which, on October 20, 1980, reversed the conviction and remanded the cause for a new trial. On February 2,1981, this Court denied the State’s application for permission to appeal.

After appellee had been removed from office, the county legislative body chose appellant Lonnie R. Butler to fill the vacancy to serve until the next general election in August 1980. He served until that time and in the August 1980 election he was chosen to serve the remainder of the term to which Mr. Blazer had been originally elected, that is, through August 31, 1982.

After his conviction had been reversed, appellee Blazer sought reinstatement from the trial court, and an order to that effect was entered on March 25, 1981. Appellant Butler, who had intervened in the proceedings, appealed that order, which has been stayed pending disposition of the appeal. The new trial ordered by the Court of Criminal Appeals for Mr. Blazer has not yet occurred.

The statute under which appellee Blazer was removed from office is as follows:

“If any judicial, ministerial or executive officer is prosecuted for a misdemeanor in office under the provisions of this Code, and duly convicted, he shall, in addition to the punishment prescribed for such offense, be removed from his office, and shall forever thereafter be disqualified from holding office under the laws and constitution of this state.” T.C.A. § 39-3219.

It is the position of appellant that the removal from office of Mr. Blazer occurred immediately upon his conviction and followed thereon as a matter of law, as a form of impeachment prescribed in Article V, Section 5, of the state constitution. It is his position that regardless of the outcome of Blazer’s appeal or of his new trial, Blazer is not entitled to be reinstated for the remainder of the term for which he was elected and, inferentially at least, it is insisted that Mr. Blazer can never again hold public office in this state regardless of the reversal of his conviction on appeal.

Despite the extremely well-reasoned and carefully documented dissent in this case, the majority are not persuaded that the statute has such a drastic effect or that one convicted thereunder has no right to have the “impeachment” portion of his sentence reviewed by the appellate courts.

Admittedly the statutes in question are old, brief and cryptic. T.C.A. § 39-3219 is found near the end of a chapter entitled “Official Misconduct, Negligence and Misfeasance.” This is a miscellaneous collection of statutes, most of them dating from the Code of 1858, providing that various acts of official misconduct shall be punished as misdemeanors. As quoted previously, the statute in question provides that if a public officer is prosecuted for a misdemeanor in office — “and duly convicted” — he shall be removed from his office and shall thereafter be disqualified from holding public office in the state. The annotators of the Code have placed a cross-reference to T.C.A. § 40-3701, which provides for the restoration of citizenship of persons “rendered infamous, or deprived of the rights of citizenship, by the judgment of a court

The statutes are silent as to the procedures to be followed during the interim between the time of conviction and a subsequent appeal, or as to the effect of the reversal of a conviction.¹

The key to the statutory provision, insofar as the present controversy is concerned, in our opinion is the word “duly”. This adverb is defined in an unabridged dictionary as follows:

“... in a due manner, time or degree: as is right and fitting: PROPERLY, REGULARLY, SUFFICIENTLY .... ” Webster’s Third New International Dictionary 700 (1971).

The word “convicted” is not subject to such precise definition. It is used in the law in any number of contexts and may refer to the verdict of a jury, the judgment or sentence pronounced by the trial court, or to a judgment that has become final or has been sustained on appeal. See generally 21 Am.Jur.2d Criminal Law §§ 617-619 (1965); Black’s Law Dictionary 301 (5th ed. 1979).²

In the context of the forfeiture of public office, at least one court has said,

“ ‘Forfeitures are not favored, and courts incline against them. When a statute may be construed so as to give a penalty, and also so as to withhold the penalty, it will be given the latter construction.’ .. . Strictly construing the language of the constitutional provision the ‘conviction’ must be a final one. Hence, it is evident that if the jury’s verdict has been set aside or was under review and thus subject to be set aside either by motion for new trial, bill of exceptions or other appropriate procedure, there would be no conviction within the meaning of the constitutional provision.” Summerour v. Cartrett, 220 Ga. 31, 136 S.E.2d 724, 725 (1964).

The term is not defined in the statutes here under consideration. Neither is it defined in the Class X statutes providing for enhanced punishment for an habitual drug offender, T.C.A. § 52-1432(d), nor in the general habitual criminal statutes, T.C.A. §§ 40-2801 et seq. To our knowledge, however, it has never been insisted that the term as used in those felony statutes has any other reference than to a judgment of conviction which has become final in the trial court or which has been affirmed on appeal. We are not aware of any case in which a criminal conviction which has been reversed on appeal has been considered to be admissible as evidence to enhance punishment under either of these statutes.

It is the general rule that when a conviction has been reversed by an appellate court, the accused stands as though he had never been tried. If a new trial is ordered, the accused is entitled to enter upon that trial with every presumption of innocence, and his guilt must be established beyond a reasonable doubt therein. See generally 24B C.J.S. Criminal Law § 1951 (1962).

Upon the reversal of Mr. Blazer’s conviction by the Court of Criminal Appeals, and in the interim pending his retrial, he stands only as a person indicted for a misdemeanor in office — not as one “duly convicted.”

Accordingly, in the opinion of the majority, the trial judge correctly reinstated Mr. Blazer to office and his judgment in that respect should be affirmed.

We recognize the validity of the reasoning in the dissenting opinion that stability and continuity in the administration of public affairs is to be desired. Nevertheless we are unable to conclude that the General Assembly intended to impose so harsh a penalty upon a public official accused of a misdemeanor as is indicated in that opinion without his ever having an opportunity for appellate review of his conviction. We recognize the persuasiveness of the decision in State ex rel. Webb v. Parks, 122 Tenn. 230, 122 S.W. 977 (1909), relied upon in the dissenting opinion, but that case did not involve the reversal of a conviction upon its merits. It simply interpreted the effect of the pardoning power of the governor upon one who had been “duly convicted” of a criminal offense. The Court held that the governor had no power to reinstate a public official who had been removed from office in connection with his criminal conviction under the statute in question. We do not believe that this is the same issue presented in the present case.

The general statutes in this state dealing with the removal of public officials from office, T.C.A. §§ 8-47-101 through 126, were enacted later than the statute now in question. They provide in some detail for the procedures to be followed during the pendency of an ouster proceeding, its trial and appeal. There are provisions for a pretrial suspension hearing after the complaint is filed and for the temporary filling of a vacancy created by such suspension. T.C.A. §§ 8-47-116, 117. There are further provisions for a judgment of ouster upon conviction or restoration to office upon acquittal. T.C.A. §§ 8-47-120, 121. These statutes expressly provide for an appeal of the judgment of ouster to the Supreme Court and provide that a judgment of ouster “shall remain in full force until vacated, reversed, or modified by the Supreme Court.” T.C.A. § 8-47-123.

Similarly, in the statutes dealing with quo warranto, and particularly-those dealing with the adjudication of disputed claims to public office, T.C.A. §§ 29-35-107, 108, there are provisions for an appeal “for the correction of errors, as in other chancery cases.” T.C.A. § 29-35-121.

It accordingly appears that any public official who has been removed from office under the general ouster statutes or whose claim to public office has been denied in quo warranto proceedings is not finally and permanently removed by the judgment of the trial court. The officer may be removed temporarily pending an appeal, as was done in the present case,³ but certainly if his appeal is successful and the judgment of the trial court is reversed, his removal from office does not remain permanent, and he has not forfeited the remainder of his term.

There are still other statutes providing for the removal from public office and disqualification thereafter in the provisions regarding public contracts and conflicts of interest by public officials with respect thereto. T.C.A. § 12-4^102 provides that any public official found guilty of such conflict of interest shall forfeit all pay and compensation for his office, shall be removed and shall be ineligible for the same or a similar position for a period of ten years. These statutes, like the criminal statutes now under consideration, make no provision for an appeal. In the case of State ex rel. v. Yoakum, 43 Tenn.App. 123, 306 S.W.2d 39 (1957), a member of a county school board was found guilty of violating T.C.A. § 12-4-101. He was ordered to be removed from office and declared ineligible to hold office thereafter for a period of ten years. The Court of Appeals, however, reversed the conviction on the facts and ordered the suit dismissed. There is no indication in the opinion that, following the reversal and dismissal of the suit, the public official was still disqualified from holding his office or from being re-elected to other public offices.

Persons convicted of felonies are not treated in the manner urged by the appellant in this case. They are disqualified from holding office upon conviction. T.C.A. § 40-2714. If such a conviction is reversed upon appeal, however, in our opinion, such reversals carry with them automatically a restoration to citizenship. We do not believe that a person whose conviction has been reversed on appeal would have to resort to a separate petition for restoration under T.C.A. §§ 40-3701 et seq.

For these reasons, we are of the opinion that the trial judge acted in accordance with the intent of the law, and with logic, in holding that Mr. Blazer is no longer “duly convicted” and that he is therefore entitled to be restored to his office pending the second trial. Surely if Mr. Blazer is acquitted upon the second trial, he would be entitled to be restored to his office. Under no interpretation of the statutes, in our opinion, could he then be said to have been “duly convicted” of the charges against him.

We recognize that the General Assembly, in its discretion, may treat public officers and their right to their respective offices differently from other citizens. Nevertheless, while a public official has no vested right in his office, “it is well settled that an office is a species of property in which he has property rights.” State v. Kerby, 136 Tenn. 386, 389, 189 S.W. 859 (1916); see also State ex rel. Shelby County v. Stewart, 147 Tenn. 375, 380, 247 S.W. 984 (1919). We are of the opinion that the General Assembly did not intend to deprive an officeholder of such property right under the old criminal statute involved here without affording appropriate appellate review similar to that permitted under all of the other statutes dealing with removal of public officials.

In our opinion, it would be extreme indeed to permit a public official to be removed from office permanently upon a jury verdict, regardless of the manner in which that verdict was reached and irrespective of the instructions given by the trial judge or his rulings upon evidence, and never to allow that official an opportunity for review of the proceedings in an appellate court. Regardless of whether the General Assembly might or might not have constitutional authority to impose such a forfeiture, we do not believe that it has done so in this statute. As they pertain to the facts presented here, the words “duly convicted” mean a conviction which has become final without appeal or one which has been affirmed after appellate review.

Accordingly the judgment of the trial court is affirmed and the stay order heretofore entered is dissolved. This cause is remanded to the trial court for entry of any further orders which may be necessary. Costs incident to the appeal are taxed to appellant Butler. All other costs will be assessed by the trial court.

COOPER and BROCK, JJ., concur. DROWOTA, J., dissents. FONES, J., concurs in dissent and files separate opinion.

1 . In Broyles v. State, 207 Tenn. 571, 341 S.W.2d 724 (1960), removal after conviction under these statutes was said to be “mandatory.” The Court added, however, “As above said, there is ample evidence herein to support this conviction.” 207 Tenn. at 579, 341 S.W.2d 724 (emphasis added).

2 . As to the many and varied civil disabilities which may flow from criminal proceedings, see The Collateral Consequences of a Criminal Conviction, 23 Vand.L.Rev. 929 (1970); with specific reference to the right to hold public office see pp. 987-1001 and 1175-1177 in the above cited article.

3 . Appellee does not challenge the propriety of the selection of Mr. Butler to serve in his stead while he was actually under judgment of conviction and during the pendency of his appeal therefrom.