Dillingham v. State

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 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

CONCUR: ______________________________ JOSEPH B. JONES, Presiding Judge ______________________________ J. CURWOOD WITT, Jr. Judge