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Click here for the full text of this decision FACTS:Michael David Dunn was driving his pickup truck on a two-lane road when the pickup crossed over the line into oncoming traffic and crashed head-on into a car driven by the complainant. Although the complainant was killed on impact, Dunn was able to walk and to speak while still at the scene. He was shaken up, but he did not appear to witnesses to need medical treatment. The officer on the scene did not smell alcohol on him. The officer asked Dunn if he would provide a sample of his blood, and Dunn agreed to do so. He was not informed of his Miranda rights. The blood tests revealed no alcohol but did show the presence of amphetamine and methamphetamine in Dunn’s system. Dunn was convicted of criminally negligent homicide. It was found that the automobile that he was driving when he committed the offense was a deadly weapon. He elected to be sentenced by the trial court. On appeal, Dunn argued that the trial court erred by failing to suppress the results of his blood test, that the evidence was both legally and factually insufficient to support the verdict and that the trial court erred in resentencing him. HOLDING:The court modifies the judgment and, as modified, affirms it. Dunn first contends that the trial court erred by denying his motion to suppress the results of his blood test because his consent was coerced. The court finds that Dunn willingly provided a sample of his blood when asked by an officer on the scene. The testifying officer stated at trial that Dunn was not placed under arrest, and he denied using threats or other tactics to overbear Dunn’s will. The court notes that Dunn did not controvert the officer’s testimony. The court therefore holds that the trial court did not abuse its discretion by denying Dunn’s motion to suppress the blood test results on the basis of invalid consent because the record supports the trial court’s finding that Dunn voluntarily consented to providing the blood sample for testing. Dunn next contends that the trial court erred by denying his motion to suppress on the ground that the blood test results were not relevant because no one specifically tied the presence of the substance to lack of normal use. The court finds that, if this is true, it is a failure of proof; the failure of proof does not render the evidence irrelevant but insufficient. The court holds that the presence of the substance was an element of the offense as charged and as submitted to the jury. Consequently, the test results were relevant. Finally, Dunn argues that the trial court improperly withdrew a lawful two-year sentence and replaced it with an eight-year sentence. The court agrees and notes that criminally negligent homicide is punished as a state jail felony unless a deadly weapon is used. The court points out that if a deadly weapon is used, the offense is punished as a third-degree felony. The court states that it is difficult to understand how one could commit a homicide without using an instrument capable of causing death or serious bodily injury. The court finds that the record is clear that the trial judge, the prosecutors, the defense lawyer and Dunn all believed they were trying a state jail felony case. They did not realize that Dunn faced the punishment of a third-degree felony, and he was not admonished on third-degree felony punishment. Dunn’s punishment was assessed at a period of two years in prison in the state jail division and a fine of $10,000. But one week after the trial court imposed the two-year sentence, the trial judge ordered the parties back to court, set aside the two-year sentence and imposed a sentence of eight years’ confinement and a $10,000 fine. The court points out that a trial judge is without authority to enter a judgment notwithstanding the verdict in a criminal case. Consequently, the trial court was obligated to enter the jury’s deadly weapon finding unless the trial court granted a motion for new trial. The court notes that Dunn did not file a motion for new trial before the trial court pronounced sentence, and, in a criminal case, only the defendant is authorized to file such a motion. The court therefore holds that the trial court erred in resentencing Dunn. The court modifies the judgment to reflect a sentence of two years’ confinement and a $10,000 fine. OPINION:Dauphinot, J.; Dauphinot, Holman and Gardner, JJ.

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