## FILED June 4, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEA LS OF TENNESSEE AT KNOXVILLE MARCH 1 999 SESSION
STATE OF TENNESSEE, ) C.C.A. 03C01-9804 -CC-00158 ) ANDERSON COUNTY ) Appella nt, ) Hon. James B. Scott, Jr., Judg e ) vs. ) (STATE APPEA L - REMAND ) TO GENERAL SESSIONS) ) NO. 98CR0038 ) ANNE K. HOSFORD, ) ) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE :

JOHN KNOX WALKUP MICHAEL W. RITTER Attorney Gene ral & Reporter 131 E. Tyrone R oad Oak Ridge, TN 37830 ELLEN POLLACK Assistant A

ttorney General 425 Fifth A

venue Nor

th 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 JAMES N. RAMSEY District Attorney

General 127 Anderson C

ounty Courthouse Clinton, TN 37716 JAN HICKS Assista nt Dist rict Att orney 127 Anderson C

ounty Courthouse Clinton, TN 37716

OPINION FILED:______________

_ MODIFIED AND DISMISSED

CORNELIA A. CLARK Special Judge1 The Record does not contain a transcript or other evi dence of any of the proceedings

conducted i n the general sessions c

ourt. A porti on of the Janu ary transcript was mentioned but was not offered into evi dence during the March 2 0, 1998 hearing conducted in the tri al court. At that hearing an assistant district attorney testified under oath about hi s recollection of the heari ngs below. On May 1, 1998, during the pendency of this appeal, appellee filed a Motion to Suppl ement the Record, to include

a transcrip

t of the procee

dings in gen eral sessi ons court on January 14 , 1998. The state opposed this motion. No action by

the trial judge is reflected. The record was

certified to

this court w

ithout the tr

anscript requ ested. 2 OPINION The State of Tennessee appeals as of right from the trial court’s remand to the general sessions court of a one-count indictment char ging the appellee, Anne K. Hosford, wi

th the misde meanor offense o f driving un der the influ ence of an in toxicant. We modify the judgmen t of the trial

court and di smiss the in dictment. BACKGROUND This case presents a procedural nightmare. The paucity of the record further complicates the court’s attempt to make a complete determination of the issues. 1 An arrest warrant was i ssued for the appellee on September 30, 1997. The wa rrant reflects th at an automobile accident occurr ed in Oak Ridge, Anderson County, Tennessee on September 24, 199 7. One vehicle left the scene just prior to the arriv al of police officers. Subsequent inv estigation resulted in the location shortly therea fter of the vehicle and the a ppellee, who admitted

being the driver. At tha t time the investigating police officer observed the appellee to have a strong odor of alcoholic beverage on her breath and about her person. He stated that her eyes were red and glassy and that she w

as unsteady on her feet. Sh e then failed field sobriety tests and refused a blood alcohol test. She was arrested for driv ing under the influence of an intoxican t. On one or more dates after appell ee’s arrest, a preliminary hearing was scheduled in general ses sions court. The hearing wa s then rescheduled to Dec ember 10, 1997. Defendant filed a moti on to suppress and appeare d in court on December 10 for the hearing on both matters. The arresting officer did not appear an d the case was rescheduled to Ja nuary 14, 1998. On that da te defendant appeared again, al ong with a witness. S

ome testimony was recei ved by the general ses sions court judge, but he appar

ently ran out of time on his calen dar. He con

tinued the h earing again to February 1 1, 1998, the prosecuting officer’s nex t availab le court dat

e.4 On February 3, 1998, the District Attorney presented the case to the Anderson County Grand Jury, wh ich returned an indictment against appellee for driv ing under the influence of an intoxi cant. The state did not inform the appellee or defense counsel about the indi ctment until they next appeared in general sessi ons court on February 11, 1998. On M arch 5,1998, appellee fil ed in the Anderson Coun ty Criminal Court a motio n to remand for prelimina ry hearing o r in the alternative to dismiss. On March 20, 1998, the tri al court conducted a heari ng on that motion. The court stated that it was “ha rd for him to find that the prosecutor was acting in bad faith," but he remanded the case to the general sessions court for any further suppression hearing left undec ided, and any other ne

cessary proceedings. ANA LYSIS The state contends that because the appellee had alre ady been indicted for driving under the influen ce, and the trial court den ied her motion to dismiss the indictment, the trial c

ourt erred i n remanding the case bac k to general se

ssions cour

t. The state relies on State v. Hudson , 487 S.W. 2d 672, 6 76 (Tenn. Cri m. App. 1972) , in asserting that, after indictment, a general sessions judge has n o authority or power to proceed with a prel iminary hearing and to re -determine the same question of probable cause. The state al so asserts that the trial cou rt did not specifically find that the prosecutor had acted in bad faith, so that appellan t was not entitled to a

dismissal of the indictment more than thirty days after her arrest. The appel lee asserts that the trial court’s ruling rep resents an i mplicit find ing of bad fait h on behalf o f the state. Tennessee law is clear that, while a preliminary hearing is not constitutionally required, it is a critic

al stage of a c riminal pro secution man dated by st atutory la

w. Moore v. State , 578 S.W. 2d 78, 80 (Tenn. 1979); Waugh v. State , 564 S.W. 2d 654, 659 (Tenn. 1978). The primary functi on of a preliminary heari ng is to determine whether probable cause exists to believ

e that the accused committed the offense charged, and to fix the amount of ba il for bailable offenses. Tenn. R . Crim. P. 5.1; State v. D’Anna , 506 S.W. 2d 200, 203 (Tenn. Crim. App. 1973 ). It is also fundamental that motions to suppres s illegally seiz

ed evidence are appro priate at the preliminar

y hearing. State v. Golden , 941 S.W. 2d 905, 9 07 (Tenn. Cri m. App. 1996)

.5 Rule 5(e) of the Tennessee Rul es of Criminal Procedure pro vides as follows: Any defenda nt arrested p rior to ind ictment or pr esentment for any o ffense . . . shall

be enti tled to a preli minary

hearin g upon his reques t therefor, whether the gran d jury of the cou nty be in session or not. If the defendant is indicted duri ng the period of time in which his preliminary hearing is being continued, or at any time before the accused has bee n afforded a preliminary heari ng on a warrant, whether at his own request or that of the prosec utor, he may dismiss the

indictment

upon motion

to the court.Provided , however, that no such Motion to Dismiss shall be granted after the expiration of thirty day

s from the date of defendant’s arrest. The Tennessee Supreme Court in Moore v. State , 578 S.W. 2d 78, 82 (Tenn. 1979), created an e

xception t

o the thirty

day rule, holding tha

t: [T]he thirty-day limitati on . . . is applicabl e only when al l parties - including the defendant, w ho must act promptly-have acted in good faith and in compliance w ith the statute. The failure of the co urt or the prosecution to exercise good faith and to abide the law operates to toll the statute and preclude i ts invocation. Thus, the question central to our review is whe ther the state or the general ses sions court ac ted in “ bad fait h” to dep rive th e appel lee of he r right to a preli minary

hearin g. Although the record is sketchy, it is clear that all of the continuances soug ht in the general sessions court were at the request of the pros ecution (apparently to avoid dismissal when the p rosecuting o fficer did not

appear) or the court its elf (to accommodate the court’s s chedule). I n this case

the defendan

t flew from out

of state and appeared in court on two or more occasions rea dy and able to procee

d with the preliminar

y hearing s he had reques ted. The state ’s prosecut ing witnes s failed to appear on two occasions. On January 14, 1998, the general sessions judge actually began the hearing, but recessed b efore completion because of a pri or personal commitment. The state apparently mad e no objection when th e judge announced he had to leav

e early, a nd agreed to the proposed new date. To allow the state to benefit from the thirty-day prov ision of Rule 5(e) becaus e its prosecuting witnes s failed to appear, or because the judge recessed the hearing be fore its completion, does not “abide the law ” nor serve the ends of justice . Accordingly, although the actions may not have originated from malicious inte nt, they are deemed to be i n “bad faith” sufficie nt to preclu de the inv ocation of th e thirty-da

y rule. Golden , 941 S.W. 2d at 908.2 We note that a decision of the general sessi ons court to suppress the evidence in questions

does not prohibit the sta te from presenting that evidence to the grand jury an d does not b ind the tri al court as to its later admissibi lity at tri al. See State v. Dixon , 880 S.W. 2d 696, 697 (Tenn. Crim. App. 1992 ). However, the appellee has the right to insist that correct procedures are followed before she may be brought into criminal court o n these charges. Because we dismiss the indictment, it is not necessary to consider the state’s request to treat this as a Rule 10 appeal. 5

6 For the reasons stated abov e, we modify the judgment of the tri al court, and dismiss the

indictment

. 2

_______________________ _____ CORNELIA A. CLARK SPECIAL JU DGE

_______________________ ________ GARY R. WADE JUDGE

_______________________ ________ NORMA M. OGLE JUDGE



### _7 

### IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1999 SESS ION

STATE OF TENNESSEE, ) C.C.A. 03C01-9804 -CC-00158 ) ANDERSON COUNTY ) Appella nt, ) Hon. James B. Scott, Jr., Judg e ) vs. ) (STATE APPEA L - REMAND ) OF INDICTMENT) ) NO. 98CR0038 ) ANNE K. HOSFORD, ) ) Appellee. )



### JUDGMENT Came the appellant, the State of Tennessee, r epresented by the Attorney General’s office and a lso came the attorney of recor d for appellee, Anne K. Hosford, and this case w as heard on the record on appeal from the Circuit Court of Anderson County; and upon consideration thereo f, this court is of the opinion that there is rev ersible error in the j udgment of the trial court. Our opinion is hereby i ncorporated in this judg ment as if set out verbatim. It is, therefore, ordered and adj udged by this court that the judgment of the trial court is modified, and the indictment is dismis sed. Costs of this appeal wil l be paid by the State of Tennessee. PER CURI AM Gary R. Wad e, Judge Norma M. Ogle, Judge Cornelia A. Clark, Special Judge