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State v. Atkins

Court of Criminal Appeals of Tennessee, Nashville

November 2, 2016

STATE OF TENNESSEE
v.
KEVIN DEAN ATKINS

          Assigned on Briefs June 21, 2016

         Appeal from the Circuit Court for Stewart County No. 2014-CR-3 Larry J. Wallace, Judge

          James R. Potter, Clarksville, Tennessee, for the appellant, Kevin Dean Atkins.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; John W. Carney, District Attorney General; and Brooke M. Orgain, Assistant District Attorney General, for the appellee, State of Tennessee.

          John Everett Williams, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L. Easter, JJ., joined.

          OPINION

          JOHN EVERETT WILLIAMS, JUDGE

         FACTUAL AND PROCEDURAL HISTORY

         On January 21, 2014, the Defendant was indicted for driving under the influence ("DUI") and DUI per se. See T.C.A. § 55-10-401(1), (2). On November 24, 2014, the Defendant appeared before the trial court on the DUI charges and a violation of probation charge. Defense counsel announced that the Defendant agreed to waive the hearing on the violation of probation, serve ten days in jail on the weekends, and extend the probationary period by one year. Defense counsel also announced that the Defendant agreed to plead guilty to a reduced charge of public intoxication and serve a probated sentence of eleven months and twenty-nine days to run consecutive to the violation of probation. In response to questioning by the trial court, both the State and defense counsel advised the trial court that everything had been addressed. The trial court agreed to accept the weekend service of ten days if the Defendant passed a drug screen.

         The Defendant confirmed under oath that he wished to waive the hearing on the probation violation charge and admit the violation. The trial court found the Defendant in violation of his probation and sentenced him to ten days in jail to be served on weekends upon the passing of a drug screen. The trial court also extended the Defendant's probation for one year after the Defendant said he agreed to the extension.

         The trial court advised the Defendant that he was charged with an amended count of public intoxication. Defense counsel stated that public intoxication was a Class C misdemeanor, even though he had previously announced that the conviction was a Class A misdemeanor with a sentence of eleven months and twenty-nine days. When asked what agreement had been reached with the prosecutor, defense counsel replied, "We didn't discuss the time. It was just the charge." The prosecutor stated that if the Defendant was "going to plea to public intox, then a C misdemeanor is fine." The trial court asked, "So it will be 30 days now?" The prosecutor replied, "Yeah." The trial court advised the Defendant of his right to a trial, and the Defendant confirmed that he wished to waive his right to a trial and enter a guilty plea.

         The prosecutor then set out the factual basis for the plea as follows:

Deputy Jody L. Batton of the Stewart County sheriff's office was dispatched to 1711 Tobacco Port Road in Bumpus Mills Tennessee on a 9-1-1 call, a vehicle being off the roadway and on fire. Upon the officer's arrival, the fire department was already on there, Officer Batton made contact with the defendant Kevin Atkins and smelled an [odor] of alcohol coming from his person. His speech was slow and slurred and his eyes were watery and bloodshot…. [T]he defendant did admit to drinking two beers in a four hour span and he performed poorly on field sobriety tests…. I think they did take blood from him, but he was taken to the hospital for a health check due to the accident.

         The trial court stated, "The Court finds a factual basis for it, as well as admissions of the defendant, accepts the plea agreement. It's amended to a public intox, Class C misdemeanor sentence conviction, 30 day sentence consecutive-suspended to probation, consecutive to the [violation of probation]." The trial court scheduled the ...


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