State of Tennessee David Allen Jackson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 17, 2016 Session

STATE OF TENNESSEE v. DAVID ALLEN JACKSON

Appeal from the Criminal Court for Sullivan County

No. S64047 James F. Goodwin, Jr., Judge

No. E2015-02033-CCA-R9-CD – Filed August 4, 2016

The Defendant, David Allen Jackson, was arrested without a warrant for driving under

the influence (DUI), a Class A misdemeanor; failure to exercise due care while driving, a

Class C misdemeanor; and failure to provide evidence of financial responsibility, a Class

C misdemeanor. See Tenn. Code Ann. §§ 55-8-136, -10-401, -12-139. Over a year after

the Defendant‟s arrest, he waived his right to a preliminary hearing and agreed to have

his case bound over to the grand jury. The grand jury subsequently indicted the

Defendant for the misdemeanor offenses listed above as well as two counts of reckless

aggravated assault, a Class D felony. See Tenn. Code Ann. § 39-13-102. After the grand

jury returned the indictment, the Defendant filed a motion in Sullivan County Criminal

Court seeking to dismiss the misdemeanor charges. The Defendant argued that the

affidavit of complaint filed following his arrest was void and that prosecution had not

commenced with respect to the misdemeanor charges until after the applicable statute of

limitations had expired. The trial court granted the Defendant‟s motion to dismiss the

misdemeanor charges. The State sought and was granted an interlocutory appeal of the

trial court‟s decision. On appeal, the State contends that the fact that the affidavit of

complaint was sworn before a notary public rather than a qualified judicial officer was a

mere “technical defect” that should not render it void. Following our review, we affirm

the judgments of the trial court.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgments of the Criminal Court

Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Barry Staubus, District Attorney General; and Benjamin Rowe,

Assistant District Attorney General, for the appellant, State of Tennessee.

Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant Public

Defender, for the appellee, David Allen Jackson.

OPINION

FACTUAL BACKGROUND

On May 29, 2013, Officer Justin Bush of the Bristol Police Department arrested

the Defendant for DUI, failure to exercise due care while driving, and failure to provide

evidence of financial responsibility following the Defendant‟s involvement in an

automobile collision. Later that day, Officer Bush filled out and signed a form affidavit

of complaint alleging the essential facts of the charged offenses. Next to Officer Bush‟s

signature was a line stating that the affidavit of complaint had been “[s]worn and

subscribed before” a “Judge/Clerk/Judicial Commissioner.” That portion of the affidavit

of complaint was signed by a notary public.

Underneath the affidavit of complaint portion of the form was a second section

titled “Probable Cause Determination.” That section stated that there was probable cause

to believe that the offenses had been committed based upon the affidavit of complaint and

was signed by a Sullivan County General Sessions judge on May 30, 2013. That portion

of the form also contained the following three options: (1) “defendant given citation or

arrested without warrant”; (2) “arrest warrant shall issue”; and (3) “criminal summons

shall issue.” None of these options were checked on the form at issue.

The Defendant‟s case was continued on several occasions in the Sullivan County

General Sessions Court until January 13, 2014, when the Defendant failed to appear in

court. On June 10, 2014, a capias was issued charging the Defendant with failure to

appear. The Defendant was arrested on the failure to appear charge on August 9, 2014.

On August 20, 2014, the Defendant waived a preliminary hearing and agreed to have his

case bound over to the grand jury. On December 2, 2014, the grand jury returned an

indictment charging the Defendant with two counts of reckless aggravated assault and

one count each of DUI, failure to exercise due care while driving, and failure to provide

evidence of financial responsibility.

On June 11, 2015, the Defendant filed in the Sullivan County Criminal Court a

motion to dismiss the misdemeanor charges. The Defendant‟s motion alleged that the

affidavit of complaint filed following his arrest was void and that prosecution had not

commenced with respect to the misdemeanor charges until after the applicable statute of

limitations had expired. On October 14, 2015, the trial court entered an order granting

the Defendant‟s motion to dismiss the misdemeanor charges. The trial court concluded

that the affidavit of complaint was void because it had been sworn “before a notary

public [instead of] a magistrate or neutral and detached court clerk.” The trial court

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further concluded that prosecution against the Defendant was not commenced before the

expiration of the applicable statute of limitations because the case was not bound over to

the grand jury until after the limitations period had expired. The trial court subsequently

granted the State‟s request for an interlocutory appeal to this court.

ANALYSIS

The State contends that the trial court erred in granting the Defendant‟s motion to

dismiss. The State argues that the fact that the affidavit of complaint was sworn before a

notary public rather than a qualified judicial officer was a mere “technical defect” that

should not void the affidavit of complaint. The State further argues that any error in the

affidavit of complaint was ultimately harmless because it “provided the [D]efendant with

notice of the charges” and because a general sessions judge later made a “probable cause

determination” based upon the affidavit of complaint. The State additionally argues that

holding that the Defendant‟s appearances in general sessions court to continue this matter

did not commence prosecution or toll the statute of limitations would encourage

defendants “to sit silent on a technical defect until the statute of limitations expire[d].”1

The Defendant responds that the trial court did not err in granting his motion to dismiss

the misdemeanor charges.

I. Standard of Review

The trial court‟s decision on the Defendant‟s motion to dismiss was based upon an

application of law to facts that were not in dispute. Because the issue presented for our

review is one of law, we review it de novo with no presumption of correctness given to

the trial court‟s holdings. State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008).

II. Applicable Statutes and Procedural Rules

An arrest warrant is statutorily defined as “an order, in writing, stating the

substance of the complaint, directed to a proper officer, signed by a magistrate, and

commanding the arrest of the defendant.” Tenn. Code Ann. § 40-6-201. The General

Assembly has also codified a form arrest warrant that meets this statutory definition. See

Tenn. Code Ann. § 40-6-207.

Tennessee Code Annotated section 40-6-203(a) provides that “[u]pon information

made to any magistrate of the commission of a public offense, the magistrate shall

examine, on oath, the affiant or affiants, reduce the examination to writing, and cause the

1

In the trial court, the State also argued that the Defendant‟s failure to appear in January 2014 should

have tolled the statute of limitations. However, the State has not raised that argument on appeal.

Therefore, our review of that issue has been waived. See Tenn. R. App. P. 13(b) (stating that “[r]eview

generally will extend only to those issues presented for review”).

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examination to be signed by the person making it.” (Emphasis added). Additionally, the

“written examination shall set forth the facts stated by the affiant or affiants that establish

that there is probable cause to believe an offense has been committed and that the

defendant committed it.” Tenn. Code Ann. § 40-6-204.

“If the magistrate is satisfied from the written examination that there is probable

cause to believe the offense complained of has been committed and that there is probable

cause to believe the defendant has committed it, then the magistrate shall issue an arrest

warrant.” Tenn. Code Ann. § 40-6-205(a) (emphases added). The General Assembly has

also provided that the examination of the affiant “does not have to take place in a face-to-

face meeting of the parties but may be conducted through the use of electronic audio-

visual equipment.” Tenn. Code Ann. § 40-6-203(b)(1).

The Tennessee Rules of Criminal Procedure provide that when a person is arrested

without a warrant, he “shall be taken without unnecessary delay before the nearest

appropriate magistrate” and that “[a]n affidavit of complaint shall be filed promptly.”

Tenn. R. Crim. P. 5(a). Tennessee Rule of Criminal Procedure 3 defines an affidavit of

complaint as follows:

[A] statement alleging that a person has committed an offense. It must:

(a) be in writing;

(b) be made on oath before a magistrate or a neutral and detached

court clerk authorized by Rule 4 to make a probable cause determination;

and

(c) allege the essential facts constituting the offense charged.

(Emphases added).

The Advisory Commission Comment to Rule 3 states that the “rule governs what

must be done to secure the issuance of an arrest warrant,” emphasizes that “[t]he validity

of the warrant depends upon the making of a probable cause determination,” and warns

that “a warrant must never be issued as a mere ministerial act done simply upon

application.” The Advisory Commission Comment to Rule 3 further states that an

affidavit of complaint is so named “to further emphasize to the one issuing an arrest

warrant the necessity for first having in hand a detailed complaint reduced to writing and

sworn to.”

Tennessee Rule of Criminal Procedure 4(a) provides as follows:

If the affidavit of complaint and any supporting affidavits filed with it

establish that there is probable cause to believe that an offense has been

committed and that the defendant has committed it, the magistrate or clerk

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shall issue an arrest warrant to an officer authorized by law to execute it or

shall issue a criminal summons for the appearance of the defendant.

(Emphasis added).

Rule 4 further provides the following:

The arrest warrant shall:

(A) be signed by the magistrate or clerk;

(B) contain the name of the defendant or, if this name is unknown,

any name or description by which the defendant can be identified with

reasonable certainty;

(C) indicate the county in which the warrant is issued;

(D) describe the offense charged in the affidavit of complaint; and

(E) order that the defendant be arrested and brought before the

nearest appropriate magistrate in the county of arrest.

Tenn. R. Crim. P. 4(c) (emphasis added).

The Advisory Commission Comment to Rule 4 notes “that the affidavit of

complaint may be buttressed by additional affidavit(s) and that the magistrate or clerk

may also examine under oath the complainant and any other witnesses.” In addressing

the issuance of an arrest warrant when the defendant has already been arrested without a

warrant, the Advisory Commission Comment to Rule 4 states as follows:

The form of the arrest warrant, as set out in Rule 4(c)(1), makes no

distinction between warrants issued for persons not yet arrested and those

warrants issued for persons already arrested without a warrant. Such a

warrant serves a dual function: first, as the authority for an arrest (where an

arrest has not already been lawfully made) and, secondly, as a statement of

the charge which the accused is called to answer. The commission did not

recommend two separate warrant forms, one for use where the accused had

not yet been arrested, and the second to merely state the charge against one

already under arrest, because it is more utilitarian to have only the one

form. The command to arrest is obviously surplusage where the warrant is

directed against one already in custody; but a warrant in such cases still

serves as the official charging instrument, issued after a judicial finding of

probable cause, and gives notice of the charge which must be answered.

(Emphasis added).

III. Arrest Warrant

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The trial court and both of the parties, until this point, have proceeded under the

assumption that the form affidavit of complaint constituted an arrest warrant. However,

our review of the record reveals that an arrest warrant was never issued in this case.

Tennessee Code Annotated section 40-6-205(a) provides that if a magistrate is satisfied

that there is probable cause “then the magistrate shall issue an arrest warrant.” (Emphasis

added). This court has previously held that an affidavit of complaint “is not, standing

alone, sufficient to provide formal notice of the offense charged” because “an arrest

warrant may or may not issue upon the affidavit of complaint.” State v. McCloud, 310

S.W.3d 851, 860 (Tenn. Crim. App. 2009).

Our supreme court has held that Rule 5(a) “„clearly contemplates‟ that a person

arrested without a warrant will „be taken before a magistrate so that formal charges can

be lodged against them by the filing of an affidavit of complaint.‟” State v. Ferrante, 269

S.W.3d 908, 912 (Tenn. 2008) (quoting State v. Best, 614 S.W.2d 791, 795 (Tenn.

1981)). However, “[a]n affidavit of complaint is merely „a statement alleging that a

person has committed an offense.‟” McCloud, 310 S.W.3d at 860 (quoting Tenn. R.

Crim. P. 3). “[E]ven in cases of warrantless arrest, the arrest warrant issued upon the

affidavit of complaint rather than the affidavit of complaint itself „still serves as the

official charging instrument, issued after a judicial finding of probable cause, and gives

notice of the charge which must be answered.‟” Id. (quoting Tenn. R. Crim. P. 4,

Advisory Comm‟n Cmt.).

Here, the form affidavit of complaint did not conform to the requirements of an

arrest warrant. Chiefly, it did not contain an “order that the defendant be arrested and

brought before the nearest appropriate magistrate in the county of arrest.” Tenn. R. Crim.

P. 4(c)(1)(E). It appears that the form affidavit of complaint was drafted under the

mistaken belief that attaching a “probable cause determination” to the affidavit of

complaint was sufficient to commence prosecution for warrantless arrests. This is

evidenced by the fact that beneath the “probable cause determination,” options for an

arrest warrant or criminal summons to “issue” were listed but they were left unchecked.

A panel of this court has recently held that a document titled “Uniform Citation”

was a valid arrest warrant. State v. Andrew Hall, No. E2014-01710-CCA-R3-CD, 2015

WL 6872661, at *2 (Tenn. Crim. App. Nov. 9, 2015), perm. app. denied (Tenn. Mar. 23,

2016). However, key to that decision was the fact that the “Uniform Citation” contained

the signature of the magistrate “commanding the arrest of [the] [d]efendant and that [the]

[d]efendant be brought before the nearest appropriate magistrate.” Id. Here, the affidavit

of complaint was initially signed by a notary public rather than a qualified judicial officer

and contained no order commanding the arrest of the Defendant.

The Advisory Commission Comment to Rule 4 states that the “command to arrest

is obviously surplusage where the warrant is directed against one already in custody.”

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However, the comment then immediately states that “a warrant in such cases still serves

as the official charging instrument, issued after a judicial finding of probable cause, and

gives notice of the charge which must be answered.” Tenn. R. Crim. P. 4, Advisory

Comm‟n Cmt. In fact, the comment makes clear that there is only one form of arrest

warrant in Tennessee regardless of whether it is issued pre- or post-arrest. Id. Both

Tennessee Code Annotated section 40-6-201 and Rule 4(c) state that an arrest warrant

must order the arrest of the defendant. Accordingly, we conclude that the form affidavit

of complaint did not substitute for a valid arrest warrant; therefore, prosecution of the

Defendant did not commence on either May 29 or 30, 2013.

IV. Affidavit of Complaint

Because the trial court and both of the parties focused on the issue of whether the

affidavit of complaint was void, we will address this issue despite our holding that an

arrest warrant was not issued. Tennessee Code Annotated section 40-6-203(a) states that

“the magistrate shall examine, on oath, the affiant or affiants, reduce the examination to

writing, and cause the examination to be signed by the person making it.”2 (Emphasis

added). Similarly, Tennessee Rule of Criminal Procedure 3 provides that an affidavit of

complaint must “be made on oath before a magistrate or a neutral and detached court

clerk authorized by Rule 4 to make a probable cause determination.” (Emphasis added).

Likewise, this court has previously stated that “[a] magistrate or court clerk shall issue a

valid arrest warrant upon the filing of a written affidavit of complaint made upon oath

before him or another magistrate or neutral and detached court clerk capable of

determining probable cause.” State v. Brutis, 664 S.W.2d 305, 308 (Tenn. Crim. App.

1983) (emphasis added).

It is clear that Officer Bush‟s signing of the affidavit of complaint before a notary

public rather than a qualified judicial officer did not meet the requirements of section 40-

6-203(a) and Rule 3. The State concedes this point. However, the State argues that this

was a mere technical defect that had “no impact on validity.” Chiefly, the State relies

2

In its brief, the State alleges that Tennessee Rule of Criminal Procedure 4(a)(2) is “more permissive”

than section 40-6-203(a) because Rule 4(a)(2) states that “[b]efore ruling on a request for a warrant, the

magistrate or clerk may examine under oath the complainant and any witnesses the complainant

produces.” (Emphasis added). However, that is not the case. Section 40-6-203(a) refers to an

“examination” of the affiant which must be made under oath, “reduced . . . to writing,” and “signed by the

person making it.” That writing is what the Tennessee Rules of Criminal Procedure refer to as an

“affidavit of complaint.” Rule 4 makes clear that a valid affidavit of complaint must be presented before

an arrest warrant may be issued. See Tenn. R. Crim. P. 4(a) (stating that “[i]f the affidavit of complaint . .

. establish[es] that there is probable cause to believe that an offense has been committed and that the

defendant committed it, the magistrate . . . shall issue an arrest warrant” (emphases added)). This is

merely a difference in nomenclature between the applicable statutes and procedural rules. Subsection

(a)(2) of Rule 4 refers to the optional verbal examination of the affiant and should in no way be construed

as suggesting that the affidavit of complaint is an optional prerequisite to a valid arrest warrant.

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upon our supreme court‟s holding in State v. Keith, 978 S.W.2d 861, 869 (Tenn. 1998),

that, with respect to the issuance of a search warrant, “a jurat—a written certificate of the

issuing judge attesting that the affiant executed the affidavit under oath”—was not “an

essential prerequisite to a valid affidavit so long as proof is offered to establish that the

affidavit was properly sworn.” (Emphases added). However, Keith is not applicable here

because, as the State has conceded, the affidavit of complaint was not properly sworn.

The State also asserts that this court has previously stated that “a defect in

probable cause proceedings such as the procurement of an arrest warrant has „no

consequence in the law unless the defendant is prejudiced by it.‟” State v. Donnie Joe

Hensley, No. E2005-01444-CCA-R3-CD, 2006 WL 2252736, at *8 (Tenn. Crim. App.

Aug. 7, 2006) (quoting State v. Campbell, 641 S.W.2d 890, 893 (Tenn. 1982)).

However, the State‟s use of this quotation ignores the context with which it appeared in

Hensley. The defendant in Hensley had alleged an error in the juvenile court‟s transfer

order of his case to criminal court, but this court held that any defect was cured “by the

grand jury‟s determination of probable cause and return of an indictment.” Id. The

quotation used by the State is made in a larger discussion of the rule that an original

“probable cause proceeding[] such as the procurement of an arrest warrant” can be cured

by a subsequent valid indictment or presentment. Id. That is not the case here because,

as will be discussed later, the Defendant‟s case was not bound over to the grand jury until

after the statute of limitations had already expired for the misdemeanor offenses.

Contrary to the State‟s argument, this court has held that if an arrest “warrant does

not meet procedural and constitutional requirements, it is invalid.” State v. Wilson, 6

S.W.3d 504, 507 (Tenn. Crim. App. 1998) (emphasis added); see also Ferrante, 269

S.W.3d at 909-10 (concluding that an affidavit of complaint was void despite the fact that

a general sessions judge “read the affidavit of complaint and determined that it

sufficiently stated probable cause” at the defendant‟s arraignment the day after the

affidavit of complaint was drafted). The affidavit of complaint was a necessary

prerequisite for a valid arrest warrant, and it did not meet all of the procedural

requirements. Thus, the affidavit of complaint was invalid and so would be any arrest

warrant issued pursuant to it.

In its reply brief, the State argued that this court should view “the defect” in the

affidavit of complaint as one of a technical and “non-constitutional nature” which did not

warrant dismissal because the Defendant could not show that he was prejudiced by the

State‟s failure to comply with the requirements of section 40-6-203(a) and Rule 3. To

support this argument, the State relies on federal authority.

Federal Rule of Criminal Procedure 3 is similar to the Tennessee rule in that it

defines the federal version of an affidavit of complaint as “a written statement of the

essential facts constituting the offense charged” which “must be made under oath before

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a magistrate judge or, if none is reasonably available, before a state or local judicial

officer.” (Emphasis added). Federal courts have long held that “[a] notary public is not

competent to act” in place of a magistrate judge or other qualified judicial officer.

Charles Alan Wright et al., 1 Federal Practice and Procedure § 42 (4th ed. 2016) (citing

Brown v. Duggan, 329 F. Supp. 207, 209 (W. D. Penn. 1971) (concerning a state prisoner

seeking issuance of an arrest warrant for “his former defense attorney”); Pugach v. Klein,

193 F. Supp. 630, 638-39 (S.D.N.Y. 1961) (concerning a state prisoner seeking issuance

of arrest warrants for a police officer, state prosecutor, and state judge); United States ex

rel. Spader v. Wilentz, 25 F.R.D. 492, 494 (D.N.J. 1960) (concerning a state prisoner

seeking issuance of an arrest warrant for a state prosecutor), aff‟d, 280 F.2d 422 (3rd Cir.

1960), cert. denied, 364 U.S. 875 (1960)).

To support its argument that failure to comply with the applicable statutory and

procedural requirements for an affidavit of complaint in this case constituted harmless

error, the State cites the following passage from an opinion by the United States Court of

Appeals for the District of Columbia Circuit:

Where an arrest is made without a warrant, and the complaint3 is therefore

sworn after the arrest, it serves no such important function; “since the

complaint at that state (i.e. post-arrest) serves no practical purpose, its

preparation and filing is usually a matter of pro forma routine.” [Federal

Rule of Criminal Procedure] 3 does not by its terms allow post-arrest

complaints to be sworn before other than judicial officers. Thus we must

take it that the rule was not literally complied with by the procedure

followed here. However, the minimal function of the complaint as filed

after arrest leaves us unable to discern any prejudice to appellants from this

procedure. The case would, of course, be very different if a pre-arrest

complaint, upon which an arrest warrant was to be based, was not sworn in

accordance with the requirements of Rule 3.

Gaither v. United States, 413 F.2d 1061, 1076 (D.C. Cir. 1969) (footnote added) (internal

citation and footnote omitted).

We are not persuaded by the State‟s argument. “An indictment or information is

the pleading by which the United States initiates the formal charge against the accused”

in the vast majority of federal criminal cases. Wright et al., 1 Federal Practice and

Procedure § 121. Conversely, “[a] complaint is the typical way for a criminal proceeding

3

“Complaint” is the term used in the Federal Rules of Criminal Procedure equivalent to the Tennessee

Rules of Criminal Procedure‟s term “affidavit of complaint.” See Tenn. R. Crim. P. 3, Advisory Comm‟n

Cmt. (describing the Advisory Commission‟s reasoning in selecting the term “affidavit of complaint”

over the term “complaint”).

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to be instituted in federal court” with “[i]ts main function [being] to serve as the basis for

an application for an arrest warrant.” Wright et al., 1 Federal Practice and Procedure §

41. Unlike an affidavit of complaint under Tennessee law, “[w]hen an arrest is made

without a warrant a complaint still must be filed, although its function is slightly

different.” Id. In that situation, a complaint is used to establish probable cause “so that a

neutral magistrate can ensure that there are adequate grounds for the detention” of the

defendant. Id. However, “[n]o complaint is needed . . . if a more formal determination

of probable cause,” such as an indictment or information, “is made first.” Id.

Tennessee law mandates that an arrest warrant be issued regardless of whether the

affidavit of complaint was filed pre- or post-arrest. See Tenn. Code Ann. § 40-6-205(a);

Tenn. R. Crim. P. 4(a). The federal rules do not contemplate the issuance of a post-arrest

warrant. See Wright et al., 1 Federal Practice and Procedure § 58 (noting that “[a]

warrantless arrest means that the probable cause determination has only been made by the

officer in the field” and that to “ensure judicial oversight” “the defendant must be brought

before a magistrate judge for an initial appearance,” and “[t]he government must then

„promptly‟ file a complaint in the district where the crime occurred that demonstrates

probable cause”). Under Tennessee law, the issuance of an arrest warrant after a

warrantless arrest serves as “the official charging instrument” against the defendant.

Tenn. R. Crim. P. 4, Advisory Comm‟n Cmt. As such, the issuance of an arrest warrant

after a warrantless arrest in this jurisdiction is more than a mere “matter of pro forma

routine.”

Furthermore, the case relied upon by the State was decided prior to 1972. In 1972,

Federal Rule of Criminal Procedure 5(a) was amended to require a complaint filed after a

warrantless arrest “be one „satisfying the probable cause requirements of Rule 4(a).‟”

Wright et al., 1 Federal Practice and Procedure § 71 n.19. Prior to 1972, “the

requirement of a complaint after a warrantless arrest was considered a jurisdictional

requirement only and the complaint rarely showed probable cause on its face.” Id. In

light of the fact that Gaither was decided at a time when the federal rules did not require a

complaint filed after a warrantless arrest to show probable cause, we do not find it

persuasive. Accordingly, we decline to rescind our prior holding that if an arrest

“warrant does not meet procedural and constitutional requirements, it is invalid.”

Wilson, 6 S.W.3d at 507 (emphasis added).

V. Statute of Limitations

As applicable here, “all prosecutions for misdemeanors shall be commenced

within the twelve (12) months after the offense has been committed.” Tenn. Code Ann. §

40-2-102(a). Tennessee Code Annotated section 40-2-104 provides as follows:

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A prosecution is commenced, within the meaning of this chapter, by

finding an indictment or presentment, the issuing of a warrant, the issuing

of a juvenile petition alleging a delinquent act, binding over the offender,

by the filing of an information . . ., or by making an appearance in person or

through counsel in general sessions or any municipal court for the purpose

of continuing the matter or any other appearance in either court for any

purpose involving the offense.

In granting the Defendant‟s motion to dismiss, the trial court concluded that the

Defendant‟s case was not acted upon until after the applicable statute of limitations had

expired for the misdemeanor offenses.

The State, citing the “commencement-by-appearance language” of section 40-2-

104, argues that the Defendant‟s failure to challenge the affidavit of complaint in general

sessions court should toll the statute of limitations. The State argues that requiring a

defendant to raise a challenge to the arrest warrant during an appearance in general

sessions court rather than in criminal or circuit court “would not foreclose future

challenges to defective charging instruments” but “would simply oblige the accused to

identify any defect and give the State reasonable opportunity to cure.” The State argues

that to hold otherwise would enable defendants “to sit silent on a technical defect until

the statute of limitations expires.” The State further argues that any challenge to the

affidavit of complaint was waived because the grand jury‟s indictment “cured any defect

in the initial charging instrument.”

“A lawful accusation is an essential jurisdictional element of a criminal trial,

without which there can be no valid prosecution.” Ferrante, 269 S.W.3d at 914 (quoting

State v. Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979)) (internal quotation

marks omitted). This court has previously held that “[a] void warrant invalidates all

subsequent proceedings emanating from the warrant” and that “[n]o valid conviction can

occur if the charging instrument is void.” Wilson, 6 S.W.3d at 507. Furthermore, our

supreme court has held that when an affidavit of complaint is void, a defendant “has not

been charged with any offense”; therefore, his appearance in general sessions court

would “not serve as a commencement of the prosecution for purposes of tolling the

statute of limitations.” Ferrante, 269 S.W.3d at 915.

As we have previously stated, no arrest warrant was issued in this case, and the

affidavit of complaint which purported to be the charging instrument was void.

Therefore, the form affidavit of complaint “did not . . . serve to charge the Defendant

with any offense.” Ferrante, 269 S.W.3d at 915. Accordingly, the Defendant‟s

appearances in Sullivan County General Sessions Court did not serve to commence

prosecution against him even though he did not raise the issue of the lack of any charging

instrument in that court because he had not been charged with any offenses at that time.

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The State is correct that an original “probable cause proceeding[] such as the

procurement of an arrest warrant” can be cured by a subsequent valid indictment or

presentment. Hensley, 2006 WL 2252736, at *8. However, to cure the lack of a valid

arrest warrant and validly commence prosecution the subsequent action must be done

prior to the expiration of the statute of limitations. See McCloud, 310 S.W.3d at 860-61

(holding that binding over of the defendant‟s case to the grand jury “within the statute of

limitations” properly commenced prosecution when there was no valid arrest warrant and

the defendant had been indicted outside of the applicable statute of limitations); State v.

Stephen James Thompson, No. M2009-02122-CCA-R3-CD, 2010 WL 3489162, at *3

(Tenn. Crim. App. Aug. 25, 2010) (holding the same). Accordingly, the State‟s argument

that the indictment returned after the applicable statute of limitations had expired cured

the defects in the affidavit of complaint is devoid of any merit.

Finally, we strongly disagree with the State‟s argument that a criminal defendant

has an obligation to inform the prosecution, who would be seeking to convict that

individual of a criminal offense using the full force and power of the government, of any

defects in the charging instrument so that the State may cure the defect before the statute

of limitations expires. We do not think that it is too much to ask of prosecutors that they

ensure that the prosecution of a defendant has been properly commenced within the

applicable statute of limitations. This is especially true in light of the fact that the State

has “a number of options at its disposal” to cure a defective arrest warrant or affidavit of

complaint. Wilson, 6 S.W.3d at 507 (noting that the State can dismiss a defective

warrant and reinstitute proceedings against a defendant through “re-arrest, indictment, or

presentment”). Accordingly, we conclude that the State failed to commence prosecution

against the Defendant within the applicable statute of limitations and affirm the trial

court‟s grant of the Defendant‟s motion to dismiss.

CONCLUSION

Upon consideration of the foregoing and the record as a whole, the judgments of

the trial court are affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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