### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecem

ber 3, 2002 STATE OF TENN ESSEE v. STEVE PA IGE Direct Appeal from the Criminal Court for Shelby County No. 01-08831 James C. Beasley, Jr., Judge

No. W2001-03045-CCA-R3-CD - Filed Mar ch 4, 2003

In an indictment returned b y the Shelby County

Grand Jury on Aug

ust 9, 2001, Defendant, Steve Paige, was charged with twocounts of aggr avated a ssault. The indictment alleged that both offenses occurred on January 16, 1999. At a hea ring on December 6, 2001, the criminal court, sua sponte , dismissed the in dictment beca use of the State’s failure to prosecute. I n its order of dismissal, the criminal court

found tha

t Defend ant was a

rrested on January

16, 1999, t

he case was bound

over to the grand jury

on May 25, 1999, but he was not indicted until twenty -seven months later. The trial court further found that Defendant was arraigned on November 13, 2001, but the State did not have a file on the

case and it had to b e contin ued twice for that reason. When the case was called on December 6, 2001, the State could still not produce a file on the case. Accordingly , the trial court dismissed the case with prejudice for the State’s failure to prosec ute pursuant to Rule 48(b) of the Tennessee Rules of Cr

iminal Proc edure. T

he St ate ap pealed. After review, we af firm the trial court’s order dismissing the case , but reve rse that p ortion of

the orde r dismissin g the ca se with prejudice, and remand this case for the trial cour t to enter an a mended or der dismis sing the

case without prejudice. Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Criminal Court Affirmed as Modified
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gib

bons, Distr

ict Attorn ey Genera l; Mike Da

vis, Assist

ant Distr ict Attorn ey Genera l; and David Zak, Assistant District Attorney General, for the appellant, State of Tennessee. Steven W. Pittman, Memphis, Tennessee, for the appellee, Steve Paige.-2- OPINION The record

in th is cas e is sca nt . Ho wev er, fro m t he r eco rd, we c an g lea n t he f ol lo win g. In June, 2000, Defendant was arrested for felonious possession of crack cocaine in excess of 0.5 gra ms, a Class B felony. At that time, he ha d not yet been indi cted for

the two ag grava

ted assa ult charg es, even though they w er e bound over to the grand jury in May, 1999. After the indictment for the aggravated

assaults w as finall

y returned in August, 2001, some twenty -seven months after the cases had been bound to the grand jury , the State had apparently negotiated a

plea agreement in the

drug case wherein it would be reduced to a misdemeanor if the ag gravated assault charg es were “settled.” This contingency

apparently c ame to the attention of the trial court on the day

that it dismissed the indictmentcharg ing the t

wo countsof agg

ravate d assault . Appare

ntly , becau se the State

was unab le to locate its file on the aggrava ted assault charges, it had not made any offer of settlemen t on the aggravated

assault charge s. The fil e could not be located at the arraignment on November 13, 2001. Following arraignment, the case wa s continue d until Nove mber 27, 2 001, and t

he State s till could notfind the file. When the cas e came back o n for hearing on December 6, 2001, the prosecutor again announced that the file could not be found. Early in the proceedings on

Decemb er 6, 200 1, the tria l court a nnounce d to a pros ecutor i n the courtroom that

if the ass istant dist

rict atto rney assigned to the agg

ravate d assault

indictmen

t still didno t h av e a fi le an d s ti ll wa s n ot re ad y to handle the case, the trial court would dismiss the indictment.
Just after th is announc eme nt, the trial court was informed of the contingency of the negotiated

plea ag reement in the drug case. There wa s a break in the proceedings, and w hen the matter was resumed

on the re cord, the

trial cou rt announced that

it was dismissing the aggravate d assault indictment. The negotiated plea agr eement was announc ed and a ccepte d by

the cour t in the drug case, and Defendant entere d his guilty plea i n th e drug case. There w as another break in the procee dings, and then the assist ant distri ct attorney

assigned to the ag grava ted assa ult case announced

to the court that the file in the aggravated assa ult case had been found. The prosecutor announced

to the court that defense counsel was aware that Defendant would be r e-indicted on the aggravated

assau lt cha rges. T he tri al cou rt ann ounce d that it was alread y drawing u p the or der dismissing the indic tment. The State did not ask the trial cou rt to rec onsider its sua sponte order in light of the fact that the file had been locate d. There is nothing in the record to indicate that Defendant eve r asserted his constitutional right to a spee dy t

rial. ANALYSIS Rule 48(b) of the Tennessee Rules of Criminal Procedure states that the trial co urt may dismiss the indictment “[i]f there is unnecessary delay in pre sen ting the charge to a g rand jury agains ta defendant

who has been held to

answer to the tria

l court, or if there is unnecessary delay in bringing a defendant to trial.”-3-

Relying upon State v. Benn , 713 S.W.2d 308, 311 ( Tenn. 1986), our supreme court has recent ly reiterated that “[t]he decision whether to dismiss an indictment lies within the discretion of the trial court.” State v. H arris , 33 S.W.3d 767, 769 (Tenn. 2000). The decision of the trial court to dismiss an indictment will not be disturbed absent a clear abuse of discretion. Id . at 770.
In State v. Benn , 713 S.W.2d 308 (Tenn. 1986), our supreme court adopted certain principles as appro priat e in ap plying R ule 48(b) of the Tennessee Rules of Criminal Procedure to criminal cases. Id . at 31 1. Amo ng thes e prin ciple s are t he fol lowi ng: (1) The trial court has authority to dismiss a case for f ailure to prosecute, whether or not there has been a constitutional speedy trial violation. (2) Rule 48(b ) i s derive d from the trial cou rt’s inhe rent com mon law po wer to control its own jurisdiction and docket. (3) A dismissal pursuant t o Rule 48(b) of the Tennessee Rules of Criminal Procedure can be w it h or without prejudice. A dismissal on a noncons titutional ground is normally without prejudice to a subsequen t re

indictmen t. (4) A dismissal w ith prejudic e for fa ilure to prosecute, which does not arise from a cons titut ional violation, should only be utilized with caution and after adequ ate for ewarning to pros ecutorsof the co nsequences of f ailure to prosecute. (5) The trial cou

rt must con si der cer

ta in facto rs in making a dete

rmination to dism iss un der Rule 48(b) of the Tennessee Rules of Criminal Procedure when there has been no constitutional violation. These are: (a ) l en gt h o f t he de la y; (b) rea sons for t

he delay ; (c) pre judice to defenda nt; (d) waiv er by

the defe ndant. Id . at 310-11. The supreme court noted that the immediately preceding four factors [(5)( a),(b),(c), and (d)] are the sa me on es to d

eter mine a spee dy tria l con stitutiona

l viol ation

exc ept th ose factors do not include whether or

not the defendant asserted his right to a speedy trial. Id . at 311. Importantly , the supreme court in Benn noted tha

t “[w]hen it i s found to b e approp riate to d ismiss with prejudice, the trial judge must

make express findings of fact on each of the relevant fac t ors listed.” Id . at 311 (emphasis added).-4-

Defend ant, at the trial court level, did not assert a constitutional right to a speedy trial, and does not claim on appeal that his constitutional right to a speedy tria

l was violated. He proc eeds with the position tha

t the dism

issal was p roper under Rule 48(b) of the Tennessee Rules of Criminal Procedure. Thus, we shall treat this matter as a dismissal upon a non-constitutional ground. Examining the four

factor s set fort

h in B enn , we note that there was an inordinate delay betweenthe aggravated a ssault case being bound o ve r to the grand jury in May of 1999 and the indictmentbeing returned more than two y ears later in August, 2001. The reason for the delay is not clear in the record. I

n other words, the State did not set forth any re ason in the record for why the case was not pre se nted to a grand jury for twenty-se

ven months. However, prejudice to the defenda nt, other than having the charg es pending against him for such a long period of time, is not clear in the record. Neither is it clear whether D efendant may have w ai ve d a ny r ight to have the charges brough

t by the State in a timely

fashion. We find that

the first two factors weigh in favor of Defendant and dismissal of the indictment, while the second two factors are

neutral in their effect. Based upon the record before us, we ar e therefore unable to find t hat the trial cou

rt abuse d its discretion in dismissing the indictmentcharging Defe ndant with two counts of

aggr avated a ssault.

That being concluded, however, we fin d that the tr ial co urt di d not make “e xpre ss fin dings of fact on each of the re levant f actors”to justify

dismissal o f the indictment with prejudice

. Benn , 713 S.W.2d at 311. Furthermore, the trial court did not give adequate forewar ning to prosecutors of the consequences for

failure to timely prosec

ute the matter to justify dismissal with prejudice. See id

. at 310. Accordingly , we conclude that while dismissal of the indictment was within the discretion of the trial court, dismissal with prejudice was not justified. Therefore, while the dismissal of the indictmentis affir

med, the matter mus tbe remanded to the trial court for entry of a n amended order dismissing the case without prejudice. CONCLUSION Based upon the record, we affirm the trial court’s order insofar as it dismissed the indictment chargingDefend ant with tw o counts of aggra vated assault. However, we find that the trial court erred by dismissing the indictment with prejudice, a nd accordingly

remand this case to the trial court for entr y of an order dismissing

the indic tment without

prejudice.

___________________________________ THOMAS T. WOODALL , JUDGE