IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 18, 2010 Session

STATE OF TENNESSEE v. STEPHEN JAMES THOMPSON 

Appeal from the Circuit Court for Maury County

No. 18362 Allen W. Wallace, Senior Judge

No. M2009-02122-CCA-R3-CD - Filed August 25, 2010

The State appeals the trial court’s dismissal of the charge of driving under the influence

(“DUI”) against Appellee, Stephen James Thompson. The trial court dismissed the charge

after finding that the statute of limitations had expired before the Maury County Grand Jury

indicted Appellee. On appeal, we determine that the trial court improperly dismissed the

charges because Appellee waived his preliminary hearing and agreed to allow the case to be

bound over to the grand jury prior to the expiration of the statute of limitations. Therefore,

the judgment of the trial court is reversed and remanded for reinstatement of the indictment

against Appellee for DUI.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed

and Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., JOINED.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney

General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee.

J. Russell Parkes and Charles M. Molder, Columbia, Tennessee for the appellee, Stephen

James Thompson.

OPINION

Factual Background

Appellee was involved in a car accident on September 28, 2007. Appellee wasinjured

in the accident, so the responding officer, Trooper Jon W. Judge, was unable to perform field

sobriety tests on Appellee even though Trooper Judge suspected that Appellee was driving
under the influence. At the time of the accident, Appellee was charged with failure to give

immediate notice of the accident, leaving the scene of an accident involving injury, driving

on an expired license, failure to provide proof of insurance, and violation of the open

container law.

On January 28, 2008, Trooper Judge executed an affidavit of complaint against

Appellee alleging that he was driving under the influence at the time of the accident. The

complaint does not appear to have been signed by a judge, magistrate, or Appellee. Appellee

subsequently made four appearances in court on February 7, 2008; March 20, 2008; April 7,

2008; and June 12, 2008, related to the charges stemming from the accident. Appellee was

represented by counsel. Subsequently, on July 24, 2008, Appellee waived his right to a

preliminary hearing and agreed to allow the case to be bound over to the grand jury.

The Grand Jury of Maury County indicted Appellee on October 3, 2008. On January

6, 2009, Appellee filed a motion for arraignment, waived personal appearance, and requested

that the trial court enter a not guilty plea. Appellant filed a motion to dismiss the DUI charge

due to the running of the statute of limitations on August 25, 2009. The trial court granted

the motion and dismissed the DUI charge on the basis that the statute of limitations expired

prior to the issuance of the indictment.

The State has appealed.

Analysis

On appeal, the State argues that the trial court “erred when it concluded that the statute

of limitations had run before the State commenced prosecution.” Specifically, the State

contends that the trial court improperly dismissed the indictment where Appellee waived his

preliminary hearing and agreed to have the case bound over to the grand jury prior to the

expiration of the one-year statute of limitations. Appellee disagrees, relying on State v.

Ferrante, 269 S.W.3d 908, 914 (Tenn. 2008). Appellee argues that the underlying affidavit

of complaint was void ab initio because it was not signed by a clerk, judge, or magistrate and

was never served on Appellee. Therefore, according to Appellee, the State failed to

commence prosecution pursuant to “one of the statutory vehicles found in [Tennessee Code

Annotated section] 40-2-104” and the trial court properly dismissed the indictment.

DUI is a Class A misdemeanor. See T.C.A. § 55-10-301, -401. According to

Tennessee Code Annotated section 40-2-102, except as otherwise provided, “all prosecutions

for misdemeanors shall be commenced within the twelve (12) months after the offense has

been committed.” The purpose of the statute of limitations is “to protect a defendant against

delay and the use of stale evidence and to provide an incentive for efficient prosecutorial

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action in criminal cases.” State v. Nielsen, 44 S.W.3d 496, 499 (Tenn. 2001). We recognize

that statutes of limitation are generally construed “liberally” in favor of the defendant.

Ferrante, 269 S.W.3d at 911 (citing State v. Henry, 834 S.W.2d 273, 276 (Tenn. 1992)).

According to Tennessee Code Annotated section 40-2-104:

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 as provided for in chapter 3 of this title, 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.

The various methods for commencement allow a defendant to be provided “with sufficient

notice of the crime.” State v. Tait, 114 S.W.3d 518, 522 (Tenn. 2003).

In the case herein, Appellee was not indicted until October of 2008, more than twelve

months after the offense. Thus, we must determine whether another event occurred prior to

the filing of the indictment that was sufficient to commence the prosecution of the case.

Appellee relies on Ferrante, 269 S.W.3d 908 (Tenn. 2008), to support his assertion

that the trial court appropriately dismissed the indictment. We find Ferrante distinguishable.

In Ferrante, the affidavit of complaint failed to comply with the Tennessee Rules of Criminal

Procedure because a clerk, rather than a magistrate or judge, signed the affidavit. 269

S.W.3d at 910. Further, the defendant in Ferrante was not bound over to the grand jury prior

to the expiration of the statute of limitations. Id. at 911. As a result, the State attempted to

rely on the defendant’s various court appearances as the commencement of the prosecution.

The supreme court determined that a defendant’s appearance in general sessions court will

only mark the commencement of the prosecution where the underlying affidavit of complaint

is valid. Id. at 914-15. In Ferrante, the underlying complaint was void, so there was no

“commencement” of the prosecution. Id.

More similar to the case herein is State v. Michael Bruce McCloud, No. E2008-01541-

CCAR3-CD, 2009 WL 1643445 (Tenn. Crim. App., at Knoxville, June 12, 2009). In

Michael Bruce McCloud, the defendant was convicted of DUI, second offense. On appeal,

the defendant argued that the trial court erred in denying the motion to dismiss where the

prosecution was not commenced within the twelve-month statute of limitations. Id. at *6.

The State argued that the prosecution commenced on February 20, 2004, the date of the

offense and the issuance of the affidavit of complaint. In the alternative, the State relied on

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the date that the defendant was bound over to the grand jury, approximately eight months

after the offense. The defendant, on the other hand, citing Ferrante, argued that because the

indictment was not issued until more than twelve months after the offense and “the affidavit

of complaint did not allege the essential elements of the offense, the bind-over was

ineffective to commence the prosecution.” Michael Bruce McCloud, 2009 WL 1643445, at

*8. This Court disagreed, finding that “unlike Ferrante, there was a judicial finding of

probable cause [when the defendant’s case was bound over to the grand jury within the

twelve month period of time] and a statutorily sufficient commencement of the prosecution

within 12 months of the commission of the offense.” 2009 WL 1643556, at *8. Thus, the

prosecution was commenced within the statute of limitations, and the trial court properly

denied the motion to dismiss. Id.

In the case herein, the offense occurred on September 28, 2007. Appellee, represented

by counsel, waived his right to a preliminary hearing, and the case was bound over to the

grand jury on July 24, 2008. In other words, Appellee was bound over to the grand jury

within twelve months of the date of the offense. Consequently, the State timely commenced

prosecution within the statute of limitations, and the trial court improperly granted the motion

to dismiss the indictment. Therefore, the judgment of the trial court is reversed and

remanded. On remand, the indictment should be reinstated and the matter proceed

accordingly.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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