Opinion
No. M1999-2566-CCA-R3-CD.
Filed April 26, 2001. Assigned on Briefs August 8, 2000 at Jackson.
Direct Appeal from the Circuit Court for Coffee County No. 28,970; L. Craig Johnson, Judge.
Vacated; Sentence Modified.
Gregory M. O'Neal, Winchester, Tennessee, for the Appellant, Alvin Ray Taylor.
Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Michael Layne, District Attorney General, and Steve Weitzman, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which John Everett Williams, J., joined; James Curwood Witt, Jr., J., dissenting.
OPINION
The Appellant, Alvin Ray Taylor, appeals the judgment of the Coffee County Circuit Court affirming the jury's assessment of a fine of $27,500 for the offense of driving on a revoked license, second offense. The sole issue on appeal is whether the failure of the fine provision of Tenn. Code Ann. § 55-50-504(a)(2) to establish a maximum penalty constitutes cruel and unusual punishment contrary to the Eighth Amendment to the United States Constitution and Article I, Section 16 of the Tennessee Constitution. The relevant portion of the challenged statute provides as follows:
This cause was originally submitted "on brief" to a panel of this court based upon whether the trial court's refusal to reduce the fine was error. Finding that the briefs of both parties overlooked the true issue before the court, this court ordered supplementation of the briefs with respect to the constitutionality of Tenn. Code Ann. § 55-50-504(a)(2). See _State v. Alvin Ray Taylor, No. M1999-2566-CCA-R3-CD (Tenn.Crim.App. at Nashville, Aug. 7, 2000).
(2) A second or subsequent violation of subdivision (a)(1) is a Class A misdemeanor. A person who drives a motor vehicle on any public highway of this state at a time when the person's privilege to do so is cancelled, suspended or revoked because of a second or subsequent conviction for vehicular assault . . ., vehicular homicide . . ., or driving while intoxicated . . . shall be punished by confinement for not less than forty-five days (45) days nor more than one (1) year, and there may be imposed, in addition, a fine of not less than three thousand dollars ($3,000) .
Tenn. Code Ann. § 55-50-504(a) (emphasis added).
After review, we conclude that the legislature's failure to establish a maximum fine renders the statute per se unconstitutional under provisions forbidding excessive fines. Additionally, we conclude that a fine of $27,500 in the case sub judice is inappropriate in relation to the nature and gravity of the offense. Accordingly, we vacate that portion of the judgment imposing a fine of $27,500. The fine is modified to reflect a fine of $2,500 pursuant to Tenn. Code Ann. § 40-35-111 (e)(1).
In its supplemental brief, the State argues that "an attack on the constitutionality of a statute cannot be raised for the first time upon appeal." Additionally, the State contends that any challenge to the constitutionality of the statute is waived since the defendant did not raise the issue at trial or upon appeal. We believe the State's argument misplaced. Tenn. R. Crim. P. 52(b) states that "An error which has affected the substantial rights of an accused may be noticed at any time, even though not raised in the motion for a new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice." As such, plain error may be noticed and addressed by this court. See Sentencing Commissions Comments, Tenn. R. Crim. P. 52.
Analysis
Large discretion is vested in the legislature in imposing penalties sufficient to prevent the commission of an offense, and only in extreme cases are the courts warranted in finding that the constitutional limit has been surpassed. Indeed, the legislature, only restrained by the organic law of the state and federal government, has the authority to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders. When reviewing a statute for constitutional infirmity, therefore, we are required to indulge every presumption and resolve every doubt in favor of the constitutionality of the statute. Petition of Burson, 909 S.W.2d 768, 775 (Tenn. 1995).
Resolution of the constitutionality of the statutory provision presently before this court requires interpretation of both state and federal constitutional provisions. Both the United States and the Tennessee Constitutions protect individuals from excessive fines. See U.S. Const. amend. VIII; Tenn. Const. art. I, § 16. Specifically, the Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The United States Supreme Court has interpreted the "excessive fines" clause to "limit the government's power to extract payments, whether in cash or in kind, as punishment for some offense." United States v. Bajakajian, 524 U.S. 321, 328, 118 S.Ct. 2028, 2033 (1998) (quoting Austin v. United States, 509 U.S. 602, 609-610, 113 S.Ct. 2801, 2805 (1993) (emphasis deleted)). Thus, not only does the Constitution prohibit barbaric punishments, but also prohibits fines that are disproportionate to the crime committed. See generally Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006 (1983).
In Solem v. Helm, Justice Powell, writing on behalf of the Court, discussed the historical foundations of the Eighth Amendment origins. See generally Helm, 463 U.S. at 284-287, 103 S.Ct. at 3006-3007. The constitutional provision is based upon the principle that punishment should be proportionate to the crime. This principle is deeply rooted in common law jurisprudence. Accordingly, when inquiry is made as to the excessiveness of a fine, the standard of measuring its constitutionality rests on the principle of proportionality. See Bajakajian, 524 U.S. at 334, 118 S.Ct. at 2036. In other words, "[t]he amount of the [fine] must bear some relationship to the gravity of the offense that it is designed to punish." Id. at 334, 118 S.Ct. at 2036 (citations omitted).
In examining a fine for unconstitutional excessiveness, the United States Supreme Court has noted that courts must be mindful (1) "that judgments about the appropriate punishment for an offense belong in the first instance to the legislature" and (2) "that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise."Bajakajian, 524 U.S at 336, 118 S.Ct. at 2037 (footnotes omitted). With proper consideration of these principles, the court must then analyze the statute with particular consideration of (1) the gravity of the offense and the harshness of the penalty; (2) the fines imposed on other criminals in the same jurisdiction; and (3) sentences imposed for commission of the same crime in other jurisdictions. See Helm, 463 U.S. at 291-292, 103 S.Ct. at 3010-3011.
At this juncture, we acknowledge, as does Judge Witt in his dissenting opinion, that the United States Supreme Court applied the three-part test to strike the sentence and not the statute. See Helm, 463 U.S. at 291-292, 103 S.Ct. at 3010-3011. We do not interpret Helm, however, to prohibit such analysis in determining a statute's constitutionality under the Eighth Amendment. See State v. Williams, 698 P.2d 678, 689 n. 4 (Ariz. 1985) ("The eighth amendment, while capable of invalidating statutes which uniformly, mandate cruel and unusual punishment, more frequently, at least in non-death penalty situations, is applied to examinations of individual sentences." (Emphasis added)). Indeed, the Helm factors have been previously employed in such statutory analysis. For example, although not controlling law, a Massachusetts Appellate Court decision applied the same three-part test adopted by the Supreme Court in Helm in analyzing whether a statute proscribing a mandatory five-year sentence imposed for the sale of heroin was constitutional under the Eighth Amendment. See Commonwealth v. Marcus, 454 N.E.2d 1277 (Mass. App. Ct. 1983). Moreover, by reviewing, on appeal, every fine in excess of $3,000 for this offense, we will, in effect, be treating the symptoms rather than the cause and, thus, promoting protracted litigation of this issue.
Our first consideration requires comparison of the amount of the fine to the gravity of the offense. Bajakajian, 524 U.S. at 336-337, 118 S.Ct. at 2037-2038 . Driving on a revoked or suspended license, second offense, is graded by our legislature as a class A misdemeanor. See Tenn. Code Ann. § 55-50-504 (a)(2) (1998). The offense is neither a violent offense nor an offense against a person. Rather, the offense reflects the legislature's prerogative to sanction a penalty against persons for violating a previously imposed driving restriction. The legislature has authorized a fine of " not less than three thousand dollars" for a second infraction of this misdemeanor offense. See Tenn. Code Ann. § 55-50-504(a)(2) (emphasis added). The disparity between the nature of the offense and the fine imposed, at a minimum, suggests a lack of proportionality in the sentence.
Tenn. Code Ann. § 55-50-504 provides in pertinent parts:
(a)(1) A person who drives a motor vehicle on any public highway of this state at a time when the person's privilege to do so is cancelled, suspended, or revoked commits a Class B misdemeanor. A person who drives a motor vehicle . . . at a time when the person's privilege to do so is cancelled, suspended or revoked because of a conviction for vehicular assault . . ., vehicular homicide . . ., or driving while intoxicated . . . shall be punished by confinement for not less than two (2) days nor more than (6) months, and there may be imposed, in addition, a fine of not more than one thousand dollars ($1,000).
(2) A second or subsequent violation of subdivision (a)(1) is a Class A misdemeanor. A person who drives a motor vehicle on any public highway of this state at a time when the person's privilege to do so is cancelled, suspended or revoked because of a second or subsequent conviction for vehicular assault . . ., vehicular homicide . . ., or driving while intoxicated . . . shall be punished by confinement for not less than forty-five days (45) days nor more than one (1) year, and there may be imposed, in addition, a fine of not less than three thousand dollars ($3,000).
(Emphasis added).
We note that the legislature amended the fine provisions of Tenn. Code Ann. § 55-50-504(a)(1) (2) in 1994. Prior to this amendment, these particular provisions provided that (1) for first offense driving on a cancelled, suspended, or revoked license, a fine of " not more than five hundred dollars ($500)" could be imposed; and (2) for a second or subsequent offense driving on a cancelled, suspended, or revoked license, a fine of " not more than five hundred dollars ($500)" could be imposed. See Tenn. Code Ann. § 55-50-504(a)(1) (2) (1993) (emphasis added). The legislative history indicates that the initial bill introduced in the Senate contained the language "a fine not less than $2,500 nor more than $5,000." (emphasis added). This language was amended several times in the House, which ultimately provided for the current language, "a fine of not less than three thousand dollars ($3,000)." (emphasis added). The legislative history reflects no reference to the then existing language.
Our second inquiry compares the fine imposed for the offense of driving on a revoked or suspended license, second offense, with fines imposed for the commission of other crimes in the State of Tennessee. Generally, the legislature has authorized a " fine not to exceed two thousand five hundred dollars" for class A misdemeanors. See Tenn. Code Ann § 40-35-111)(e)(1) (1997) (emphasis added). Additionally, the fine imposed for a first infraction of driving on a revoked license shall " not [be] more than one thousand dollars." (emphasis added). Tenn. Code Ann. § 55-50-504(a)(1). Indeed, the more serious offense of driving under the influence carries a fine of "not less than three hundred fifty dollars ($350) nor more than one thousand five-hundred dollars ($1,500)" for a first offense; a fine of "not less than six hundred dollars ($600) nor more than three thousand five hundred dollars ($3,500)" for a second offense; a fine of "not less than one thousand one hundred dollars ($1,100) nor more than ten thousand dollars ($10,000)" for a third offense; and a fine of "not less than three thousand dollars ($3,000) nor more than fifteen thousand dollars ($15,000)" for a felony fourth offense. See generally Tenn. Code Ann. § 55-10-403(a)(1). A fine imposed for a second offense driving on revoked, a class A misdemeanor, therefore, has the potential, as no statutory maximum limit to the fine exists, to surpass fines imposed for similar but more serious offenses. Indeed, it is noted that the fine provisions for this class A misdemeanor permits imposition of a fine in excess of that which may be imposed upon a defendant convicted of a class A felony. See Tenn. Code Ann. § 40-35-111 (b)(1) (fine for class A felony not to exceed fifty thousand dollars).
Our legislature has authorized the following fines for felonies and misdemeanors:
(b)(1) Class A felony . . . .the jury may assess a fine not to exceed fifty thousand ($50,000). . . .
(2) Class B felony . . . the jury may assess a fine not to exceed twenty-five thousand dollars ($25,000). . . .
(3) Class C felony . . . the jury may assess a fine not to exceed ten thousand dollars ($10,000). . . .
(4) Class D felony . . . the jury may assess a fine not to exceed five thousand dollars ($5,000). . . .
(5) Class E felony . . . the jury may assess a fine not to exceed three thousand dollars ($3,000). . . .
(e)(1) Class A misdemeanor . . . a fine not to exceed two thousand five hundred dollars ($2,500). . . .
(2) Class B misdemeanor . . . a fine not exceed five hundred dollars ($500). . . .
(3) Class C misdemeanor . . . a fine not to exceed fifty dollars ($50.00). . . .
Tenn. Code Ann. § 40-35-111(b) (e).
Our third and final consideration compares the contested statutory fine with fines imposed for commission of the same crimes in other jurisdictions. From a review of similar offenses in other states, we have determined that most states imposed maximum fines that are less than the statutorily imposed minimum fine imposed in Tennessee. See, e.g., Alaska Stat. § 28.15.291(b)(1)(C) (mandatory fine of $500 for driving on revoked license); Ala. Code § 32-6-19 (fine of not less than $100 nor more than $500 authorized for driving on revoked license); Ark. Code Ann. § 27-16-303 (fine for driving on revoked license "not more than $500"); Cal. Vehicle Code § 14601.1(b)(1) (fine for second offense driving on revoked license not less than $500 nor more than $2,000); Ga. Code Ann. § 40-5-121(a) (fine of not less than $1,000 nor more than $2,500 authorized for second offense driving on revoked license); 625 Ill. Comp. Stat. 5/6-303 (statute does not expressly enumerate fine for driving on revoked license other than enumerating offense class A misdemeanor); Iowa Code § 321.218 (fine of not less than $250 and not more than $1,000 authorized for offense of driving on revoked license); Mich. Comp. Laws § 257.904 (fine of not more than $1,000 authorized for driving on revoked license, second offense); Miss. Code Ann. § 63-1-57 (fine of not less than $200 and not more than $500 authorized for offense of driving on revoked license); N.J. Stat. Ann. § 39:3-40 (fine of $750 for second offense driving on revoked license); N.M. Stat. Ann. § 66-5-39 (fine not to exceed $1,000 for driving on revoked license); Okla. Stat. tit. 47 § 6-303 (fine of not less than $100 nor more than $500 authorized for driving on revoked license); R.I. Gen. Laws § 31-11-18.1 (mandatory $500 fine for second offense driving on revoked license); Wyo. Stat. Ann. § 31-7-134 (fine of not less than $250 and not more than $750 authorized for second offense driving on revoked license).
In reaching our conclusion, we acknowledge the broad deference afforded to our legislature in determining criminal offenses and the penalties and punishments assigned thereto. However, based on our analysis of the factors enumerated in Solem v. Helm, we conclude that the legislature's failure to establish a maximum authorized fine for the offense of driving under the influence, second offense, results in a fine which is, per se, disproportionately harsh when compared with (1) the gravity of the offense, (2) the fines that may be imposed for similar offenses in this state, and (3) the fines imposed for the same/similar offenses in other jurisdictions. Specifically, we hold that a statute which provides a minimum fine with no maximum limit constitutes "excessive punishment" and, thus, is unconstitutional.Cf. State v. LeCompte, 406 So.2d 1300, 1304 (La. 1981). Notwithstanding this holding, the statute itself remains valid. We hold unconstitutional only that portion of the statute which provides for no maximum fine.
The doctrine of elision permits a court to strike an unconstitutional portion of a statute and to find the remaining provisions constitutional. See Lowe's Companies, Inc. v. Cardwell, 813 S.W.2d 428 (Tenn. 1991). Although disfavored by the courts, the rule of elision applies:
if it is made to appear from the face of the statute that the legislature would have enacted [the provision] with the objectionable features omitted, and those portions of the statute which are not objectionable will be held valid and enforceable, . . . provided, of course, there is left enough of the act for a complete law capable of enforcement and fairly answering the object of its passage.
Franks v. State, 772 S.W.2d 428, 430 (Tenn. 1989) (citations omitted); see also Nolichuckey Sand Co., Inc. v. Huddleston, 896 S.W.2d 782, 789 (Tenn.App. 1994). In the present case, we are without doubt that the statutory provisions would have been enacted regardless of the penalty provision for driving on a revoked license, second offense. Accordingly, we apply the doctrine of elision in striking the fine provision of Tenn. Code Ann. § 55-50-504(a)(2).
The failure of the legislature to prescribe a statutory maximum fine for the offense of driving on revoked, second offense, not only creates a per se unconstitutional punishment, but, as illustrated by the $27,500 fine imposed in this case, creates the opportunity for abuse by the trier of fact. There is no rational explanation for the imposition of such a disproportionate fine considering that the maximum fine for driving on revoked, first offense, may not exceed one thousand dollars ($1,000). As previously noted, the imposition of a $27,500 fine for this class A misdemeanor offense falls within the range of fines which may be imposed upon class A felons. See Tenn. Code Ann. § 40-35-111 (b)(1) and (2).
By holding the fine provision unconstitutional, we find it unnecessary to address the concern of whether the "open-ended" fine provision fails to "give fair warning of the consequences of violation," required by Tenn. Code Ann. § 39-11-101(3) (Objectives of criminal code).
For the reasons herein, we hold the fine provision of Tenn. Code Ann. § 55-50-504(a)(2) unconstitutional insofar as the provision establishes a constitutionally disproportionate punishment for the offense of an excessive degree. Moreover, the fine imposed in the case sub judice is grossly disproportionate compared to fines imposed for similar offenses. Accordingly, the trial court's judgment imposing a fine in the amount of $27,500 is vacated. We modify the judgment to reflect a fine of $2,500.
I find that I must respectfully depart from Judge Hayes's opinion. I concur in the reversal of the fine of $27,500, but I disagree that the fine provision of Code section 55-50-504(a) should be declared unconstitutional and that we should impose a fine pursuant to the provisions of Tennessee Code Annotated section 40-35-111(e)(1). I have concluded that we should hold that the particular fine in this case is excessive via our sentencing law but that we may, and should, stop short of declaring the statutory provision unconstitutional. On de novo review, we should impose a fine of $3,000, as is authorized by Code section 55-50-504(a).
It is unclear to me whether the majority bases its finding of constitutional infirmity upon the Eighth Amendment's "excessive fines" clause or its "cruel and unusual punishments" clause. The majority characterizes the infirmity as an excessive fine, but the analysis used is based upon the cruel and unusual punishment clause. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001 (1983). Moreover, the Helm court analyzed Helm's sentence, as opposed to the sentencing statute. Id. at 290-91, 103 S.Ct. at 3010. The court noted that "[t]he Constitution requires us to examine Helm's sentence to determine if it is proportionate to his crime." Id. at 303, 103 S.Ct. at 3016 (emphasis added). After reviewing the specific characteristics of Helm's case and his sentence, the court concluded that "his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment." Id. at 303, 103 S.Ct. at 3016-17 (emphasis added). In Helm, the Supreme Court did not analyze, much less strike down, the operative statute.
It is the duty of the courts to hold acts of the legislature constitutional if it is possible to do so, resolving every reasonable doubt in favor of constitutionality . . . . The cardinal principal [sic] of statutory construction is to save and not to destroy." State v. Summers, 692 S.W.2d 439, 442 (Tenn.Crim.App. 1985). Thus, a court will not pass on the constitutionality of a statute, or any part of one, unless it is absolutely necessary for the determination of the case and of the present rights of the parties to the litigation. See State v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263 (1949). A presumption exists in favor of the constitutionality of an act, and the courts are constrained to construe the act in question so as to reconcile its provisions with the constitution, if possible. See Koen v. State, 162 Tenn. 573, 39 S.W.2d 283 (1931).
In light of these principles, I believe that two important considerations belie the need to declare the fine provisions of Code section 55-50-504(a)(2) unconstitutional.
First, even if one applies the three-part proportionality test of Helm to the fine imposed in the present case and if one concludes that the fine is disproportionate and offends the constitution, the preferred remedy should be to strike down the fine but not the statute. The statute is capable of application under relevant facts in which it may result in a large, but constitutional, fine. Code section 55-50-504(a) establishes penalties for a "second or subsequent violation" of the statute proscribing driving on a revoked license. Although the defendant was charged with only a second offense, the statute could be operative to sanction, for instance, a ten-time offender who not only violates the licensing law blatantly but is an incompetent driver and dangerously accident-prone. I do not doubt that the offenses proscribed by section 55-50-504(a)(1) can be egregious enough to render proportionate, and hence constitutional, a fine well in excess of $3,000.
Second, I conclude that the imposition of a $27,500 fine in the present case is unsupported in the record and that it is unnecessary to declare the fine unconstitutional, much less the statutory provision. As noted above, in Helm, the Supreme Court held that the sentence imposed pursuant to the South Dakota recidivist statute was not proportionate and was, therefore, in violation of the Eighth Amendment to the United States Constitution. In the present case, however, we need only resort to Tennessee statutes, as interpreted by Tennessee courts, to conclude that the fine was unsupported in the record and, therefore, was excessive as a simple matter of sentencing law.
"This court has the authority to review fines pursuant to the l989 Sentencing Act." State v. Patterson, 966 S.W.2d 435, 446 (Tenn.Crim.App. 1997). "The trial court's imposition of a fine, within the limits set by the jury, is to be based upon the factors provided by the 1989 Sentencing Act, which include "the defendant's ability to pay that fine, and other factors of judgment involved in setting the total sentence." State v. Marshall, 870 S.W.2d 532, 542 (Tenn.Crim.App. 1993); see State v. Lewis, 978 S.W.2d 558, 567 (Tenn.Crim.App. 1997). Thus, the trial court, and upon de novo review this court, must consider factors and principles "such as prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, total sentence." State v. Blevins, 968 S.W.2d 888, 895 (Tenn.Crim.App. 1997). The mandated considerations include the defendant's ability to pay the fine, Patterson, 966 S.W.2d at 446; Marshall, 870 S.W.2d at 542; State v. Bryant, 805 S.W.2d 762, 766 (Tenn.Crim.App. 1991); however, a "significant fine is not automatically precluded just because it works a substantial hardship of a defendant — it may be punitive in the same fashion incarceration may be punitive." Marshall, 870 S.W.2d at 542. "The seriousness of the offense may support the punitive nature of the fine assessed." State v. Alvarado, 961 S.W.2d 136, 153 (Tenn.Crim.App. 1996).
Using these guidelines, it is as easy to conclude that the fine in the present case runs counter to the1989 Sentencing Act as it is to conclude, via the three-part proportionality test of Helms, that the fine violates the constitution.
In the present case, the record reflects that the defendant was convicted of second-offense driving under the influence (DUI), for which the jury selected, and the trial court approved, a fine of $3,500, and second-offense driving on a revoked license (DRL), for which the jury selected, and the trial court approved, a fine of $27,500. The defendant was also convicted of violation of the implied consent law. In addition to the fines, the trial court imposed a sentence of eleven months, 29 days on the DUI, with 200 days to be served before being released on probation, to run concurrently with the same sentence imposed on the DRL. The defendant was ordered to pay court costs on the consent law violation.
Although no transcript of the defendant's jury trial is provided in the appellate record, we glean from the motion for new trial that the conviction offenses resulted from an automobile accident, and the defendant maintained at trial that he was not the driver of the car in which he was riding. The presentence report introduced at the sentencing hearing reflects that the defendant was born August 21, 1948, and on January 10, 1998, he was arrested for DUI and DRL following a traffic accident in Tullahoma. Apparently no one suffered any injuries or damages in the accident; at least, the report indicated that restitution was "not applicable." The report indicated that neither mitigating factors nor enhancing factors had been filed by the parties.
At the time of trial, a charge was pending against the defendant for an arson on a fire that occurred while the defendant was on bond for the current charges. The defendant's prior criminal record included the following convictions: DUI, 1994, 1992, 1990; DRL 1994, 1992, 1988; parole revocation (theft) 1993; theft 1993; failure to appear 1992; worthless check 1990, 1989, 1987(2), 1985, 1969; burglary, 1969; larceny 1993, 1967; and speeding 1989. Various offenses similar in nature to the above convictions were reported, but not verified, from other jurisdictions, including federal cases. The investigation officer testified that the defendant served federal prison time and admitted convictions in Virginia and in Memphis, Tennessee. The defendant spent significant periods of time in incarceration and had been employed recently as a nurseryman and landscaper. The defendant did not testify at the sentencing hearing. His counsel stipulated the correctness of the presentence report.
During the sentencing hearing, the prosecutor referred to the fine recommended by the jury as being "unusually high." In his argument to the trial judge, the prosecutor commented that the jury "took the charge real darn serious in assessing what I can only describe as the biggest fine I have ever heard o[f] in the State of Tennessee for driving on revoked license pursuant to that statute" and suggested that the court might "consider redocketing that matter for remittitur for something more in line with the defendant's ability to pay, but all things considered, I . . . think . . . that an 11-29 sentence is . . . merited. . . ."
The trial court made no findings with respect to the jury-recommended fine, nor did it orally pronounce its approval of any fine. The jury-recommended fine amounts appear, without any further commentary by the trial judge, in the court's judgments.
Based upon this court's de novo review of this record, I must conclude that, pursuant to our sentencing law, the record fails to support a fine of $27,500. The first question we must address is whether the case should be remanded for further consideration and findings by the trial court or whether we should adjudicate the fine as a function of de novo review. We recognize and emphasize that a "trial court may not simply impose the fine as fixed by the jury." Blevins, 968 S.W.2d at 895. In the past, when the trial judge has "failed to articulate the basis for imposing the . . . fine set by the jury," we have remanded for the trial court's reconsideration in light of all appropriate sentencing considerations. Lewis, 978 S.W.2d at 567.
In the present case, however, the record supplies a basis for a rational de novo review, and unencumbered as we are by any findings of the trial court, we should conclude that the significant, but minimum, fine of $3,000 should be imposed. To be sure, the defendant's prior record and his low potential for rehabilitation support the propriety of a significant, or punitive, fine. See Marshall, 870 S.W.2d at 542. On the other hand, the defendant's social history and lengthy incarceration periods suggest the defendant's inability to pay a large fine, and the prosecutor himself acknowledged the defendant's inability to pay "the biggest [DRL] fine" he had ever heard of in Tennessee. Also, it is significant that the state in its sentencing argument to the trial court, and the trial court itself, so far as we can glean from the record, believed that the incarceration period of 200 days was of much more penal value than the fines imposed. We should conclude that, in view of the state and the trial court discerning little or no justification for the "biggest [DRL] fine" in Tennessee, we should lay aside the jury's recommendation and impose the statutory minimum fine of $3,000.
Respectfully, such a conclusion would be a function of the sentencing law and obviates the necessity of constitutional intervention to rectify the fine.