The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JUNE 1997 SESSION July 18, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9702-CC-00076
Appellant, )
) MADISON COUNTY
VS. )
) HON. WHIT LAFON, JUDGE
JOE DAVID SLOAN, )
) (Possession with Intent to Sell
Appellee. ) and/or Deliver a Schedule II
) Controlled Substance)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN KNOX WALKUP CLIFFORD K. McGOWN, JR.
Attorney General and Reporter (appeal only)
113 North Court Square
KENNETH W. RUCKER P.O. Box 26
Assistant Attorney General Waverly, TN 37185
450 James Robertson Parkway
Nashville, TN 37243-4351 GEORGE MORTON GOOGE
(at trial and of counsel on appeal)
JERRY WOODALL District Public Defender
District Attorney General
STEPHEN P. SPRACHER
SHAUN A. BROWN (at trial and of counsel on appeal)
Assistant District Attorney General Assistant Public Defender
Lowell Thomas State Office Building 227 West Baltimore Street
225 Martin Luther King Drive Jackson, TN 38301
Jackson, TN 38301
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
Pursuant to Rule 3(c) of the Tennessee Rules of Appellate Procedure, the
State of Tennessee appeals the order of the Circuit Court of Madison County
dismissing the indictment charging Joe David Sloan with possession with the intent
to sell and/or deliver methamphetamine, a Schedule II controlled substance. Sloan
filed a pro se Motion to Dismiss, and after a hearing, the trial court dismissed the
indictment. We reverse the decision and remand to the trial court for further
proceedings.
BACKGROUND
In April 1993, Sloan was indicted for the possession of methamphetamine,
a Schedule II controlled substance, with the intent to sell and/or deliver. The
offense allegedly occurred on or about September 19, 1992. Apparently, at the
same time he was arrested for the possession of methamphetamine, he was also
charged with possession of marijuana. According to Sloan’s unsworn statement to
the trial court, he pled guilty in City Court to simple possession of marijuana on
September 20, 1992. The record does not contain a City Court warrant or
judgment.
After the indictment was returned, the state could not apprehend Sloan since
he was incarcerated in Florida at the time. In August 1993, Sloan was released on
parole in Florida. He was thereafter incarcerated in the Tennessee Department of
Correction on an unrelated charge. Sloan was arraigned on the present charge on
September 19, 1996.
Subsequently, Sloan filed a pro se motion to dismiss the indictment of April
5, 1993. A copy of the motion is not included in the record. Counsel was appointed
on Sloan’s behalf. The trial court held a hearing on December 3, 1996.
At the hearing on the motion, Sloan stated that he based his motion on the
grounds of double jeopardy. The state began to make its argument on double
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jeopardy when the trial court interjected:
THE COURT: All right now, stop.
Mr. Spracher, do you wish to amend his motion that it be
dismissed for failure to have a speedy trial?
MR. SPRACHER: We could do that, Your Honor.
THE COURT: Do you do that?
MR. SPRACHER: We do that, Your Honor.
THE COURT: All right, I grant that motion.
MR. BROWN: Your Honor, could I just state for the record that his
speedy trial doesn’t come up until he’s served with a warrant. He’s
never been served until the past month or so.
THE COURT: Well is there any other way I can dismiss it?
MR. SPRACHER: Yes, sir, mandatory joinder.
THE COURT: Do what?
MR. BROWN: No, sir, Your Honor --
THE COURT: I want something that will stand. Mr. Brown, this man
has been in jail down there. He’s here, and this thing has been
pending that length of time, and if he can go back to Florida and get
himself straightened out, we’ll all be better off. Now how can I do it?
...
The state then continued its argument in opposition to the double jeopardy
grounds when the court interrupted as follows:
THE COURT: Well I’m going to dismiss it.
MR. BROWN: Yes, sir. For that reason, Your Honor, or for the length
of time?
THE COURT: Both of them. Do you see what I’m trying to do, Mr.
Brown?
MR. BROWN: Yes, sir.
No evidence was presented at the hearing, other than the unsworn
statements of Sloan and arguments of counsel.
Other than speedy trial grounds, the trial court never articulated on what
other basis the indictment was dismissed. The written order dismissing the
indictment provides as follows:
This cause came to be heard . . . upon the defendant’s pro se written
Motion to Dismiss and the Public Defender’s oral Motion to Dismiss
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for lack of a speedy trial. It being shown to the Court that the matter
should be dismissed for both reasons stated by the defense . . .
While it is clear that the trial court dismissed the indictment on speedy trial
grounds, the transcript of the hearing and the written order are unclear as to the trial
court’s ruling on the issues of double jeopardy and mandatory joinder.
Consequently, we will address all three issues.
DOUBLE JEOPARDY
The state argues that the trial court erred in dismissing the indictment on the
grounds of double jeopardy. The state asserts that the misdemeanor possession
of marijuana (a Schedule VI controlled substance) and the felony possession with
the intent to sell and/or deliver a Schedule II controlled substance constitute two
separate and distinct offenses. Therefore, the state contends that no double
jeopardy violation exists.
In State v. Campbell, 549 S.W.2d 952 (Tenn. 1977), the Supreme Court held
that the sale of two separately scheduled controlled substances constitutes two
separate and distinct offenses which would permit separate convictions.
Subsequently, the court extended its holding in Campbell to state that the
possession with the intent to sell two or more controlled substances within the same
schedule constitutes separate and distinct offenses. State v. Collier, 567 S.W.2d
165, 166 (Tenn. 1978). In both cases, the Supreme Court considered the legislative
history of the Drug Control Act and concluded that the legislature intended that the
sale of each substance should constitute a separate act.
Methamphetamine is classified as a Schedule II controlled substance. Tenn.
Code Ann. § 39-17-408(d). Because marijuana is a Schedule VI controlled
substance, possession of marijuana constitutes a separate offense distinct from the
possession of methamphetamine with the intent to sell and/or deliver. See Tenn.
Code Ann. § 39-17-415(1). Accordingly, a prosecution on the indictment would not
be barred on the grounds of double jeopardy.
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MANDATORY JOINDER
Sloan submits that the trial court properly dismissed the indictment due to the
state’s failure to join the offenses under Tenn. R. Crim. P. 8(a). The state instead
asserts that mandatory joinder was not a basis for the dismissal of the indictment.
However, even if mandatory joinder was a basis for dismissal of the indictment, the
state claims that this was error because Rule 8(a) does not apply in this case. We
agree.
Rule 8(a) of the Tennessee Rules of Criminal Procedure provides in pertinent
part:
Two or more offenses shall be joined in the same indictment,
presentment, or information, with each offense stated in a separate
count, or consolidated pursuant to Rule 13 if the offenses are based
upon the same conduct or arise from the same criminal episode and
if such offenses are known to the appropriate prosecuting official at
the time of the return of the indictment(s), presentment(s), or
information(s) and if they are within the jurisdiction of a single court.
Defendant argues this rule bars the prosecution of the offense involving
methamphetamine because this offense arose out of the same conduct as the
offense involving marijuana.
The Tennessee Rules of Criminal Procedure govern the procedure
conducted in “all courts of record in Tennessee,” subject to some enumerated
exceptions. Tenn. R. Crim. P. 1. However, Sloan allegedly pled guilty to
possession of marijuana in City Court, which is not a “court of record.” In addition,
Rule 8 is not specifically enumerated under Rule 1 as being applicable to the
General Sessions Courts.1 Furthermore, this court has previously held that Rule
8(a) does not apply to criminal proceedings before the General Sessions Courts.
State v. Teresa G. Pickett, C.C.A. No. 01C01-9301-CC-00026 (Tenn. Crim. App.
filed December 2, 1993, at Nashville); see also State v. Roy C. Curtis, C.C.A. No.
01C01-9002-CC-00047 (Tenn. Crim. App. filed October 18, 1990, at Nashville).
The misdemeanor marijuana charge could be disposed of in City Court, whereas
1
The term General Sessions Court as provided by Rule 1 includes municipal courts
exercising the jurisdiction of a General Sessions Court. Tenn. R. Crim. P. 1, Advisory
Commission Comments.
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the felony methamphetamine charge could not. See Tenn. R. Crim. P. 5 and 5.1.
Therefore, the state was not required to join these two offenses into one
prosecution.
SPEEDY TRIAL
The state claims that the trial court erred in dismissing the indictment for lack
of a speedy trial. The state complains that Sloan was allowed to orally amend his
motion to include speedy trial grounds. The state further asserts that because the
trial court did not allow the state to present proof as to the reason for the delay, the
court was ruling that the three and a half year delay “constituted a speedy trial
violation as a matter of law.”
In Barker v. Wingo, the United States Supreme Court developed a balancing
test to determine when a defendant has been denied his right to a speedy trial
under the Sixth Amendment. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
In Barker the court discussed the balancing of four factors: (1) the length of the
delay, (2) the reason for the delay, (3) whether the defendant asserted a claim to
his right, and (4) whether defendant was prejudiced by the delay. Id. Our Supreme
Court adopted this balancing test in State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn.
1973).
The length of the delay is the “triggering mechanism that will necessitate the
consideration of the other three factors.” State v. Wood, 924 S.W.2d 342, 346
(Tenn. 1996). However, the length of the delay alone will not support a finding of
a speedy trial violation. State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App.
1994); State v. Kolb, 755 S.W.2d 472, 474 (Tenn. Crim. App. 1988). It is necessary
to balance the length of the delay along with the other three Barker factors in order
to determine if a speedy trial violation has occurred. Kolb, 755 S.W.2d at 474.
In the present case, the trial court’s ruling did not reflect a balancing test of
the four Barker factors. Nor was the ruling based upon any evidence other than the
time between the indictment and the subject hearing. Accordingly, this case is
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remanded for a hearing so that the trial court may allow proof and make findings of
fact and conclusions of law concerning the alleged speedy trial violation.
CONCLUSION
For the foregoing reasons, this Court respectfully reverses the order of the
trial court and remands for further proceedings consistent with this opinion.
JOE G. RILEY, JUDGE
CONCUR:
PAUL G. SUMMERS, JUDGE
DAVID H. WELLES, JUDGE
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