FILED

August 17, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00512

)

Appellant, )

)

) KNOX COUNTY

VS. )

) HON. RAY L. JENKINS

JOHN GRAVES, ALIAS, ) JUDGE

)

Appellee. ) (State Appeal - Statute of Limitations)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF KNOX COUNTY

FOR THE APPELLEE: FOR THE APPELLANT:

ROBERT S. HOLLAND JOHN KNOX WALKUP

SHANNON M. HOLLAND Attorney General and Reporter

10805 Kingston Pike, Suite 130

The Sandstone West Building ELLEN H. POLLACK

Knoxville, TN 37922 Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

RANDALL E. NICHOLS

District Attorney General

RANDALL E. REAGAN

Assistant District Attorney General

City-County Building

Knoxville, TN 37902

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The State of Tennessee appeals as of right, pursuant to Tennessee Rule

of Appellate Procedure 3(c), from a judgment of dismissal entered in the Criminal

Court for Knox County. The trial court judge dismissed the cause of action

against the Defendant, John Graves, Alias, without stating his reasoning on the

record. We infer from the record that the action was dismissed based upon

expiration of the statute of limitations. We reverse the judgment of the trial court.

The procedural facts of this case are as follows: On October 2, 1992, victim

Robert Valiga filed an affidavit of complaint against Defendant for “contractor’s

fraud.” In his Affidavit of Complaint, Valiga asserted that Defendant and Robert

Waddell contracted to build his home but terminated their employment while the

house was substantially less than one-half complete. Valiga also complained

that (1) the contracted compensation for Defendant and Waddell totaled $18,500;

(2) Defendant and Waddell actually received fees totaling $14,000; and (3) the

men terminated their work with debts outstanding that totaled more than $29,000.

This affidavit was attested by a general sessions judge on October 2, 1992,

and the court issued a warrant for the arrest of John Graves on that day. The

warrant, along with a “misdemeanor citation” which incorporated the warrant by

reference, was executed and returned on October 8, 1992. Unfortunately, a John

Graves other than Defendant was mistakenly arrested. On June 7, 1993, another

“misdemeanor citation” was issued for the proper John Graves, and Defendant
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apparently appeared before the general sessions court on June 10, 1993. The

citation of June 7 also incorporated by reference the prior warrant. 

On August 16, 1993, Defendant’s charge was bound over to the Grand

Jury, which issued an indictment as follows:

The Grand Jurors for the State of Tennessee, upon their

oaths, present that ROBERT H. WADDELL, ALIAS AND JOHN

GRAVES, ALIAS, heretofore, to-wit: On or about the ____ day of

September, 1988, and divers days between that date and the ____

day of February, 1989, . . . did unlawfully and with intent to defraud

Robert Valiga, use the proceeds of payment made to them on

account of improving certain real property for purposes other than

to pay for labor performed and materials furnished by order for this

specific improvement, while an amount for which they were liable for

such labor and materials remained unpaid, contrary to T.C.A. 66-11-

138, said prosecution was commenced by the swearing out of a

warrant in the General Sessions Court for Knox County, Tennessee,

on the 8th day of October, 1992 . . . . 

The Defendant filed a motion “to dismiss the indictment and/or grant a

Judgment of Acquittal” based generally on his assertions that the facts would not

support a conviction. He later filed an amendment to the motion to dismiss which

included an assertion that the statute of limitations barred the prosecution.

Following argument on Defendant’s Motion to Dism iss, the trial court summarily

dismissed the case. The only statement the trial judge made concerning the

basis of the dismissal was, “Well, I - - just don’t see this. I’m going to dismiss it.”

The State appeals, contending that the applicable statute of limitations

does not bar its action against Defendant. We agree, and we therefore reverse

the trial court’s dismissal and remand for further proceedings. 

Tennessee Code Annotated § 66-11-138, the offense charged in the

indictment, read:
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Any contractor, subcontractor, or other person who, with intent

to defraud, shall use the proceeds of any payment made to him on

account of improving certain real property for any other purpose

than to pay for labor performed on, or materials furnished by his

order for, this specific improvement, while any amount for which he

may be or become liable for such labor or materials remains unpaid,

shall be guilty of a felony and punished accordingly. 

Tenn. Code Ann. § 66-11-138 (1982) (repealed). Tennessee Code Annotated

§ 39-1-201 provided that “[w]henever a person is convicted . . . of a felony the

punishment for which is not otherwise provided in this Code, he shall be

sentenced to imprisonment in the penitentiary not less than one nor more than

ten (10) years.” Tenn. Code Ann. § 39-1-201 (1982) (repealed) (recodified as

amended at § 39-11-113 (1997)). Furthermore, because the punishment is not

death or life imprisonment under § 40-2-101(a), and not “expressly limited to five

(5) years or less” under § 40-2-101(b), the appropriate statute of limitations is 

§ 40-2-101(c), in which “[p]rosecution for any offense punishable by

imprisonment in the penitentiary, other than as specified in subsections (a) or (b),

shall be comm enced within four (4) years next after the commission of the

offense.” Tenn. Code Ann. § 40-2-101(a)-(c).

“Commencement” of an action by the State occurs when a warrant is

issued, among other events. Tenn. Code Ann. § 40-2-104. In this case,

Defendant’s alleged criminal conduct occurred between September 1988 and

February 1989. As to all alleged criminal acts occurring on or after October 2,

1988, the State had until October 2, 1992, to commence prosecution. Here, a

warrant was issued for Defendant on October 2, 1992. Although the Defendant

was not arrested on this warrant, the facts recounted in the complaint evince a

clear intent to arrest Defendant, and not another John Graves. In addition, the

citation by which Defendant was brought before the court incorporated the
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original warrant, and there is no evidence in the record that the court ever

dismissed or otherwise disposed of the warrant. To the contrary, court dates set

for Defendant were continuously recorded on this same document. 

Finally, the allegations of the complaint, sworn to by the victim on October

2, 1992, describe in detail facts that sufficiently characterize the felony for which

Defendant was indicted by the Grand Jury. We conclude that the warrant issued

on October 2, 1998, was intended for Defendant and adequately commenced his

prosecution for the felony of misapplication of contract payments. Therefore, this

record does not support a finding that this action commenced outside the

appropriate limitations period, and prosecution of the offense set forth in the

indictment does not appear to be barred.

In dismissing this case, the trial judge made no findings of fact and did not

state the basis of the dismissal. No testimony was presented and no facts were

stipulated. The Defendant argues other reasons why the dismissal should be

upheld. From this record, all we can determine is that the offense set forth in the

indictment is not time-barred as a matter of law. The merits of the prosecution

cannot be addressed without proof of the facts.

The judgment of the trial court is reversed and this case is remanded for

further proceedings. 

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

GARY R. WADE, PRESIDING JUDGE

___________________________________

JOSEPH M. TIPTON, JUDGE