Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs June 21, 2016
from the Circuit Court for Stewart County No. 2014-CR-3 Larry
J. Wallace, Judge
R. Potter, Clarksville, Tennessee, for the appellant, Kevin
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.
Everett Williams, J., delivered the opinion of the court, in
which Norma McGee Ogle and Timothy L. Easter, JJ., joined.
EVERETT WILLIAMS, JUDGE
AND PROCEDURAL HISTORY
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.
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.
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.
prosecutor then set out the factual basis for the plea as
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.
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