# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) NO. 02C01-9702- CC-00076 Appellant, ) ) MADISON COUNTY VS. ) ) HON. WHIT LAF ON, JUDGE JOE DAVID SLOA N, ) ) (Possession with Intent to Sell Appellee. ) and/or Deliv er a Schedule II ) Controlled S ubstance)

FOR THE APPELLA NT : FOR THE A PPELLEE : JOHN KNOX WALKUP CLIFFORD K. McGOWN, JR. Attorney Gen eral and Repor ter (a pp ea l o nl y)

113 North Court Square KENNETH W. RUCKER P.O. Box 26 Assistant Att orney Gener al Waverly, TN 37185 450 James Roberts on Parkway Nashvil le, TN 37243-4351 GEORGE MORT ON GOOGE (at trial and of counsel on a pp eal ) JERRY WOODALL Distric t Public Defender Distric t Attorney General STEPHEN P. SP RA CHER SHAUN A . BRO WN (at tri al and of counsel on appeal ) Assistant D istrict A

ttorney Gener

al Assistant Publ ic Defender Lowell Thomas State Office Buildi ng 227 West Baltimore Street 225 Marti n Lut her K ing Dri ve Jackson, TN 38301 Jackson, TN 38301

OPINI ON FI LED:

REVERSED A ND REMA NDED

JOE G. RI LEY, JUDGE2 OPINION

Pursuantto Rule 3(c) of the Tennesse e Rule s o f Appellate Procedu re, the State of Tennessee appeals the order ofthe C ircuit Co urt of Madison C ounty dismissing the indictment c harging Joe David Sloan with poss ession wi th the intent to sell and/or deliver

methamphetamine, a Schedul e II controll ed substance. Sloan filed a pro se

Motion to Di smiss, and after a heari ng, the tri al court dis missed the indictment. W e reve rse the decis ion and remand to th e trial cour t for further proceedings.

BACKGROUND
In April 1993, Sloan was indicted for thepossession of methamphet amine,
a Schedule II cont rolled subst ance, w ith the int ent to sell and/ or deliver. The offense allegedly

occurred on o r about September 19 , 1992. Apparentl y, at th e same time he was arr

ested for the possession of me thamphetam ine, he was also charged with poss ession of mariju ana. Accordin g to Sloan’s unsw orn statement to the trial court, he ple d guilty in City Court to si mple possession of marijuana on September

20, 1992. The recor d does not contain a City Cou rt war rant or judgment. After the indictment was returned, the state could no t apprehend Sloan since he was incarcerated in Flori da at the time. In August 1993, Sloan was released on parole in Flori da. He was thereafter incar

cerated in the Tennessee D epartment of Correction on an unrelated c harge. Sloa n was arr aigned on the pr

esent charge on September 19, 1996. Subs eque ntly, Sloan filed a pro se motion to dismiss the indictme nt of April 5, 1993. A copy

of the motion is not included i n the record. Counsel was appointed on Sloan’s behal f. The trial cour t held a hearin g on December 3, 1996. At the hearing on the motion, Sloan stated that hebased his motion on the groundsof double jeopardy

. The st ate began to make its argument on double3

jeopardy w hen the trial court interj ected: THE COURT: Al l right now, stop. Mr. Spracher, do y

ou wish to

amend hi s motion that it be dismissed for failure to have a speedy trial? MR. SPRACHER: W e could do that, Your Honor. THE COURT: Do

you do that? MR. SPRACHER: W e do that, Your Honor. THE COURT: Al l right, I grant that motion. MR. BROW N: Your Honor, could I just state for the record tha t his speedy trial doesn’t come up until he’s served with a warrant. He’s never been se rved until the past month or so. THE COURT: Well is there any other way I can di smiss it? MR. SPRACHER: Yes, sir, mandatory joinder. THE COURT: Do

what? MR. BROW N: No, sir, Your Honor -- THE COURT: I want something that will stand. Mr. Brown, th is man has been in jail down th ere. He’s h ere, an d this th ing h as been pending that length of time , and if he can go back to Florida

and get himself straight ened out, we’ ll all be be tter off. Now

how can I d o it?

. . . The state then conti nued its argu ment in opposition to the double jeo pardy grounds when the court interrupted as f ollows: THE COURT: Well I’m goin g to dismis s it. MR. BROWN: Yes, sir. F or that reason, Your

Honor, or for the length of time? THE COURT: Both of them. Do you see what I’m try in g to do, Mr. Brown? MR. BROW N: Yes, sir. No eviden ce was p resented at the hearing, othe r than the unsworn statements of Sloan and arguments of counsel. Other than speedy trial g r ounds, the tria l court never articul ated on what oth erbasi s the indictment was dis missed. The w ritten order dismissingthe indictment provides as follows: This cause came tobe heard . . . u pon the defendant’s pro se writte n Motion to Dismiss and the Public Defend er’s oral Motion to Dismiss4 forlac k of a

spee dy tria l. It b eing s hown to the Court t hat the matter should be dismi ssed for both reas ons stated by the defense . . . W hile it is clear that the trial court dismi ssed the indic tment on speedy tri al grounds, the transcr ipt of the hearingand the wr itten order are unclear as t o the trial court’s ruling o n the issues of double jeopa rdy and mandatory joinder. Consequently, we will address all three issues.

DOUBLE JEOPARDY

The state argues

that the trial court erre d in dismiss ing the indictment on th e groundsof d oub le jeo pard y. The state asser ts that the misde meanor possessi on of marijuana (a Schedule VI contr olled substanc e) and the felony pos session with the intent to sell and /or d elive r a Sch edu le II cont rolle d sub stan ce co nsti tute two separate and distinct offe nses. Therefore, th e state contends that n o double jeopardy violation exists. In Stat e v. Campbell , 549 S.W.2d 952 (Tenn. 1977), the Supreme Cou rt held that the s ale o f two sepa rate ly sche dule d con troll ed su bsta nces cons titu tes t wo separ ate and distinct offenses which w ould permit sepa rate convi ction s . Subse quen tly, the court ex tended its holdi ng in Campbell to state that the possession with the intent to sell two or more c ontrol led su bstanc es wi thin t he same schedule consti tutes separate and distinct of fenses. State v. Co llier , 567 S.W.2d 165, 166 (Tenn. 1978). In bot h cases , the Su preme Court cons ider ed th e legi slat ive historyof the Drug C ontrol Act and concluded that the legis lature intended that the sale of each substan ce should const itute a separat e act. Methamphetamine is classified as a Schedule II cont rolled subst ance. Tenn. Code Ann. § 39-17-408(d). Because marijua na is a Schedul e VI controll ed substance, possession of marijuana const itutes a separate offense dis tinct from the possession of methamphetami ne with theintent to sel l and/or deli ver. See Tenn. Code Ann. § 39-17-415( 1). Accordi ngly, a prosecution on the indictme nt would not be ba rred on th e grou nds o f do uble jeop ardy.1 The term General Sessions Court as provided by Rule 1 includes municipal courts exercising the jurisd

iction of a

Genera l Sessions Co

urt. Tenn . R. Crim. P. 1, Advisory Commission Comments. 5 MA NDA TORY JOIN DER

Sloan submits that thetrial cour t properly

dismissed the indictment d ue to the state’s failure to jo in the offenses under Te nn. R. Crim

. P. 8(a). The state instead assertsthat mandatory joinder was not a basis for the dismissa l of the indictment. However, even if mandatory joinder was a basis for dis missal of the indi ctment, the state claims that this was error because Rule 8 ( a ) d o e s n o t a p p l yi n t h i s c a s e . We agree. Rule 8(a) of the Te n nessee Rules of Criminal Pr ocedure prov ides in perti nent part: Two or mo re offenses shall be joined in the s ame indictment, presentment, or information, with each offens e stated in a separ ate count, or consoli dated pursuant to Ru le 13 if the offenses are based upon the same conduct or arise fro m the same criminal episode and if such of fense s are kno wn to the a ppropri ate pro secutin g o f ficial at the time of the return of the indictment(s), presentm ent(s), o r information(s) and if they are within the jurisdi ction of a sing le court. Defendant argues this ru le bars the prosecution of the offense involv ing methamphetamine because this offense ar ose out of th e same conduct as t he offense involv ing marij uana. The Tennessee Rules of Criminal Procedure govern the procedure conducted in “all courts of record in Tennessee,” s ubject to some enumer ated exceptio ns. Tenn. R. Crim. P. 1. Howev er, Sloan all egedly pl ed guilty to possession of marijuana in City Court, which is not a “court of record.” In addi tion, Rule 8 is not spec ifically enumerated under R ule 1 as being applicable to the General Sessions Courts. 1 Furthermore, this court has previousl y hel d that Rule 8(a) does not apply

to criminal proceedings before the Gene ral Ses sions Courts. State v. Ter esa G. Pi ckett , C.C.A. No . 01C01-9301-C C-00026 (Tenn. C rim. App. filed December 2, 1993, at Nashv ille); see also State v. RoyC. Curtis , C.C.A. No

. 01C01-9002-CC -0004 7 ( Tenn. Crim. App. filed October 18, 1990, at Nashville). The misdemeanor mari j uana charge could be disposed of in City Court, w hereas6

the felony methamphetamine charge coul d not. See Tenn. R. Crim. P. 5 and 5.1. Therefor e, the state was not requi red to join t hese two offenses i nto one prosecution.

SP EE DY TR IAL

The state claims

that the trial court erred in dismissing the indictment f or lack of a speedy

trial. The state complains that Sloan was allowed to orally amend his motion to include sp eedy trial grounds. The state further asserts that

because the trial court did n ot al low th e sta te to pres ent p roof as to the re ason for t he de lay, the court was rul ing thatthe three and a hal f year delay “constituted a speedy tr ial violatio n as a matter of law .” In Bark er v. W ingo , the United States Supreme C ourt develo ped a balancing t est to determine w hen a defendant has been deni ed his rig ht to a s peedy tria l under the Sixth Amendment. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker

the court

dis cuss ed th e bal anci ng o f fo ur f actors: (1) the length of the dela y, (2) the reas on for the del ay, (3) whether th e defendant asserted a claim to his right, and (4) whe ther defendantwas prejudiced by the delay. Id . Our Supreme Court adopted this balancing test in State v. Bi shop , 493 S.W.2d 81, 83-84 (Tenn. 1973). The length of the del ay is the “trigg ering mechani sm thatwill necessitatethe consideration of th e oth er t hreefa cto rs.” 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 tr ial violati on. State v. Vance , 888 S.W.2d 776, 778 (Tenn. Crim. App

. 1994); State v. Kolb , 755 S. W.2d 472, 474 (Tenn. C rim. App. 1988). It is necessary to balance the length of the delay al ong wit h the other thre e Barker factors in or

der to determine if a s peedy trial violati on 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 r uling based upon any ev idence other than the time between the i ndictment and the s ubject hearing . A ccord ingly, this case is7

remanded for a hearing so that the trial court may allow proof and make findings of fact and conclusi ons of law con cerning thealleged spe edy trial violati on.

CONCLUSI ON

For the foregoing reasons, thi s Court res pectfully reverses t he order ofthe trial cour t and remands for furthe r proceeding s consistent with thi s opinion.

JOE G. RILEY , JUDGE

CONCUR:

PAU L G. SUMM ERS, JUDGE

DAVID H. WELLE S, JUDGE