# FILED August 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711- CR-00512 ) Appe llant, ) ) ) KNOX COUNTY VS. ) ) HON. RAY

L. JENKI NS JOHN GRAVES, A LIAS, ) JUDGE ) Appellee. ) (State Appeal - Statute of Limitations)
ON APPEA L FROM THE JUDGMENT OF THE CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLEE : FOR THE APPELLANT : ROBERT S. HOL LAND JOHN KNOX WALKUP SHANNON M. HOLL

AND Attorney Generaland Reporter 10805 Kingston Pik

e, Suite 130 The Sandstone West Building ELLEN H. POLLACK Knoxvill e, TN 37922 Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 RANDALL E. NICHOLS Distri ct Attor ney General RANDALL E. REAGAN Assistant Distri ct Attor ney General City-County

Building Knoxvill e, TN 37902
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The State o f Ten ness ee ap peals as of rig ht, purs uant to Ten ness ee Ru le of Appellate Pro cedure 3(c), f rom a judgment of di smissal entered in t he Criminal Cour t for Knox County. The tr ial court judge dismiss ed the cause of act ion against the Defendant, John Graves, Ali as, without statinghis reasoni ng on the record. We infer from the record that the acti on was dismissed based upon expirat ion of the statute of lim itations. W e reverse th e judgm ent of the tria l court.

The proce dural fa cts of th is case are as follows : On O ctobe r 2, 199 2, victim Robert Valigafiled an affidavit o f com plaint a gains t Defe ndan t for “con tractor ’s fraud.” In his Af

fidavi t of Complaint , Valiga as serted that Defendant and Robert W adde ll contracted to buildhis home but terminated thei r employment whil e the house was s ubsta ntially les s than one-h alf com plete. V aliga a ls o complained that(1) the cont racted com pensation for Defendant and Waddell totaled $18,5 00; (2) Defendant and Waddell actual ly recei ved fees totaling $14, 000; and (3) t he
men terminated t heir work wi th debts outstanding t hat total ed more than $29,000.

This affidav it was attested by a generalsessions ju dge on October 2, 1992, and the court issued a war rant for the arrest

of John Graves on t hat day. The
warran t, along with a “misdemeanor citation” whi ch incorporated the warrant by reference, was executed and returned on October 8, 1992. Unfortun ately, a John Graves other

than Defendant wasmistakenly arrested. On June 7, 1993, anot her “misdemeanor citation” was i ssued for t he properJohn Graves, and Defendant-3-

apparently

appeared before t he general sessi ons court on June 1 0, 1993
. The citation of Ju ne 7 also incorpor ated by re ference the prior w arrant.

On August 16, 1993, Def endant’ s charge wa s bound over to t he Grand Jury, which issued an indi ctment as follows:

The Grand Jurors for the State of Tenn esse e, upo n their oat hs, pres ent t hat ROBE RT H. WADDELL, ALIAS A ND JOH N GRAVES, ALIAS , hereto fo re, to-wit: On or ab out the ____ day of Septem ber, 1988, and divers days between that date and the ____ day of Febru ary, 1989 , . . . did unlaw fully and with intent to defraud Robert Vali ga, u se the proceeds of payment made to them on account of improving ce rtain real property for purp oses other t ha n to pay for labor p erform ed an d ma terials fu rnishe d by ord er for th is spec ific improvement, whi le an amount for which they were l iable fo r such labor and materi als remained unpai d, contrar y to T.C.A. 66 -11- 1 3 8, said pros ecution w as com menc ed by the swearin g out of a warrantin the General Sessions Cour t for Knox Count

y, Tennessee, on the 8 th day of O ctober, 1 992 . . . . T he Defendant fi led a motion “ to dismiss t he indict ment and/or gran t a Judgment of Acqu ittal” bas ed ge nerally on his asse rtions th at the fa cts wo uld not support a conviction
. He later fil ed an amendme nt to the motion to di smiss which included an asserti on that the statute of limitations barr

ed the pros ecutio n. Following argument on Defenda nt’s Motion to Dism iss, the trial court sum marily dismissed the case. The onl y statement t he trialjudge made concerning the basis of the d ismiss al was , “W ell, I - - just don’t se e this. I’m going to dismis s it.”

The State appeals, contending t ha t the applicabl e statute of limi tations does not bar it

s action against Defe ndant. W e agree, and we therefore reverse the trial cou rt’s dismiss al and re mand for further pr oceed ings.

Tennessee Code Annotated § 66- 11-138, the of fense charged i n the indict ment, read:-4- Any contractor, subcontractor, or o ther pe rson w ho, with in ten t to defraud, shall use t he proceeds of any payment made to him on a ccount of improving ce rtain real property for any o ther purp os e than to pay fo r labor p erform ed on , or ma terials fu rnishe d by his orderfor, this s pecific impro veme nt, while any amount for which he may be or become liabl e for such l abor or materials

remains unpaid, shall be g uilty of a felony and pu nished accord ingly. Tenn. Code A nn. § 66-11-1 38 (1982) (rep ealed). Tennessee Code Annotated § 39-1-20 1 provided t hat “[w] henever a person i s convicted . . . of a felony the punishment for wh ich is not ot herwise prov ided in t his Code, he shal l be sentenced to impr isonment in t he penitenti ary not l ess than one nor more t han ten (10) years .” Tenn. Code Ann. § 39- 1-201 (1982) ( repealed) ( recodifi ed as amended at § 39-11-113 (1997)). Furt hermore, because the punishment i s not death or life imprisonment under § 40-2-101(a) , and not “expressly l imited to five (5) years or less”

under § 40-2-101(b), the appropri ate statute of l imitations i s § 40-2-101(c) , in whic h “[p]r osecution for any offense punishable by imprisonmentin the penitentiary, other tha n as specified in su bsections (a) or (b ), shall be comm enced within fou r (4) years next after thecommi ssion of t he offense.” Ten n. Code A nn. § 40-2-10 1(a)-(c).

“Com menc emen t” of an action by the State occurs when a warr ant is issued, among other events. Tenn. Code Ann. § 40-2-104. In t h is case, D efend ant’s alleged cr iminal conduct occurred between September 1988 and February 1989. As to al l all eged crimina l acts oc curring on or after Octo ber 2, 1988, the State had un til Octobe r 2, 1992, to c omm ence p rosecu tion. Here , a warrantwas issued for Defendant on October 2, 1992. Alt hough the Defendant
was n ot arres ted on thi s warrant, the facts recounted i n the complaint evince a clear intent t o arrest Defendant, and not another John Graves . In addi tion, t he citati on by whi ch Defendant was brought before the court incorporated the-5-

originalwarrant, a nd there is no evide nce in the record th at the cou rt e ve r dismissed or otherwi se disposed of t he warrant. To the contrary , court dates set for Defen dant we re continu ously rec orded o n this sam e docu ment.
Finally, the allegat ions of t he complaint, sworn to by t he victi m on October 2, 1992, descri be in detai l facts thatsuffic iently

characteri ze the felony for whi ch Defendant was indicted by the Grand Jury . We conclude thatthe warrant issued
on October 2, 1998, was intended for Defendant and adequately commenced his prosecution for the felony of mis applicat ion of contract payments. Ther efore, th is record does n ot supp ort a finding that th is act ion commenced outside t he approp riate limitati ons pe riod, and pr osecution of

the offens e set fort h in the indict ment does not appear to be barred.

In dismissing this case, the tri al judge made no findi ngs of fact and did not state the basis of

the dismissal . No testi mony was presented and nofacts were sti pulated. The Defendant argues ot her reasons why t he dismissal shoul d b e upheld. From this record, allwe can determineis that the of fense set forth in t he indict ment is nottim e-barred as a matter of law. The merits of t he prosecuti on cannot be addressed without proof of t he facts.

The judgment of the trialcourt is reversed and t his case is remanded for further pro ceedin gs.

____________________________________ DAVID H. WELLES , JUD GE-6-

CONCUR:

___________________________________ GARY R. WADE, PRESI DING J UDGE

___________________________________ JOSEPH M. TIPTON, JUDGE