State v. Wilson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1998 November 5, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00487
)
Appe llant, )
)
) KNOX COUNTY
VS. )
) HON. MARY BETH LEIBOWITZ
HUGH RAY WILSON, ) JUDGE
)
Appellee. ) (State A ppeal - D ismissa l of W arrant)
ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE
CRIMINAL COURT OF KNOX COUNTY
FOR THE APPELLEE: FOR THE APPELLANT:
HERBERT S. MONCIER JOHN KNOX WALKUP
Suite 775 NationsBank Center Attorney General and Reporter
550 Main Avenue
Knoxville, TN 37902 ELLEN H. POLLACK
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
REBECCA A. BELL
ROBERT JOLLEY
Assistant District Attorneys General
City-County Building
Knoxville, TN 37902
OPINION FILED_________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The State a ppea ls the dismissal of an arrest warrant by the Knox Coun ty
Criminal Court. T he De fendan t was con victed of driving un der the influen ce in
Knox County General Sessions Court, but on appe al, the Criminal C ourt
overturned the conviction, holding that the warrant upon which the conviction was
based was void ab initio. On appeal, the State contends that the warrant, which
was initially defective, was properly amended prior to trial, and thus, the
conviction should s tand. In addition, the Defendant appeals a ruling allowing the
State to appeal the dismissal of the warrant. The Defendant contends that Rule
3 of the Tennesse e Rules of Appe llate Proce dure do es not allo w the Sta te to
appeal the dismissal of an arrest warrant. Tenn. R. App. P. 3. W e conclude that
the State has the rig ht to appe al the dism issal of the w arrant, and we affirm the
trial court’s conclusion that the warrant was void.
On April 16, 1996, the Defendant, Hugh Ray Wilson, was arrested without
a warrant on the charge of driving under the influence. On the same day, the
officer who arrested the Defendant presented an affidavit to Judicial
Commissioner John Sholly, who attested the affidavit of complaint and issued an
arrest warrant. Although the affidavit contained the officer’s address, division,
and ph one nu mber, th e officer/affian t failed to sign the affidavit.
The case was in itially set for April 24, 1996, and was thereafter continued
to June 1 0, 1996 and later J uly 11, 19 96. At the July 11 hearing, the Defendant
entered a formal plea of not guilty. At each successive proceeding, each of the
Knox County General Sessions judges scheduled to hear the case recused
hims elf or herself because of personal acquaintance with the Defendant. The
-2-
case was eventually set for Augu st 21, 199 6 before Judge Murch , a judge from
out of county who was specially designated to hear the case in place of the
recused Knoxville judges.
On August 19, 1996, two days before the scheduled hearing, the
prosecutor appeared before Judge Tony Stansberry, who had previously recused
hims elf from the case, to cure the defective warrant. The Defendant was not
notified of the proceeding. The officer who arrested the Defendant was present
at the proceeding. Judge Stansberry witnessed the officer’s signature being
placed on the original affidavit. The judge then scratched through Commissioner
Sholly ’s signature and signed his name to both the affidavit and the warra nt. The
date, April 16, 1996, remained untouched.
On August 21,1996, at the hearing before Judge Murch, Defendant Wilson
was notified of the changes to the warrant and moved to dismiss it. His motion
was overruled, and he was subsequently convicted in general sessions court of
driving under the influence. The Defendant next filed an appeal to the Knox
Coun ty Criminal Court and again moved to dismiss the warrant. A hearing was
held on Augu st 7, 1997 befo re Knox County Crimina l Court Ju dge M ary Beth
Leibowitz; and on October 8, 1997, Judge Leibowitz filed a Memorandum Opinion
dismissing the warrant, finding tha t it was “void from the beginning,” and
dismissing the Defe ndant’s driving und er the influe nce co nviction. T he State
moved to reconsider, but the State’s motion was not addressed by the trial court
becau se the S tate subs equen tly filed a notice of appe al to this Co urt.
A thresho ld issue, ra ised by the Defendant, is whether the State has the
right to appeal to this Court, purs uant to Rule 3 of the Tennessee Rules of
-3-
Appe llate Procedure, from the dismissal of an arrest warrant. Tenn. R. App. P.
3. We conclude that it does.
The Defendant initially raised this issue on a motion to dismiss the State’s
appe al. We overruled the motion, but reserved our final decision until the appeal
was heard in full. Judge Wit t, who made the preliminary ruling on this issue,
noted that the pro vision of R ule 3 permitting an app eal as of rig ht by the S tate
from the dismissal of a “complaint” could include the dismissal of an “arrest
warran t.” He observe d that a “‘co mplain t’ in the conte xt of a criminal proceeding
may be fairly understood to mean the entire misdemeanor proceeding, during
which an arrest warrant may have been iss ued, wh ich proce eding n ever resu lts
in an indictme nt or inform ation.” The D efend ant arg ues th at the la ngua ge of R ule
3 does not expressly provide for an appea l from dism issal of an a rrest warra nt.
He asserts that allowing such an appeal would be an enlarg eme nt of the State’s
grounds for appeal, an issue which should be addressed by the legislature rather
than the judiciary. We disagree.
Rule 3(c) of the Tennessee Rule s of Appellate Procedure sets forth the
grounds for an appeal as of right for the State:
In criminal actions an appeal as of right by the state lies only from
an order or judgment entered by a trial court from which an appeal
lies to the S uprem e Cou rt or Co urt of C riminal Appeals: (1) the
substantive effect of which results in dismissing an indictmen t,
information, or complain t; (2) setting aside a verdict of g uilty and
entering a judgment of acquittal; (3) arresting judgment; (4) granting
or refusing to revoke probation; or (5) remanding a child to the
juvenile court. The state may also appeal as of right from a final
judgment in a habeas corpus, extradition, or post-conviction
proceeding.
Id.
-4-
Our jurisdiction by statute extends to review of the final judgments of trial
courts in “proceedings instituted with reference to or arising out of a criminal
case.” Tenn. Code Ann. § 16-5-108(a)(2). Rules 37(a) and (b) of the Tennessee
Rules of Criminal Pro cedure provide that an appeal as of right “lies from any
order or judgment in a criminal proceeding where the law provides for such
appea l.” Tenn. R. Crim. P. 37 (a), (b). This Court has previously observed that
“the statute establishing jurisdiction in th is Cou rt appa rently a nticipa tes tha t all
final judgm ents arising out of criminal cases are appea lable.” State v. McC ary,
815 S.W.2d 220, 221 (Tenn. Crim. App. 1991); see State v. Warren Sego, No.
02C01-9411-CC-00244, 1995 WL 454020, at *1 (Tenn. Crim. App., Jackson,
Aug. 2, 1995 ); State v. Talmadge G. Wilbanks, No. 02C01-9601-CR-00003,
1996 W L 6681 19, at *3 (T enn. C rim. App ., Jackso n, Nov. 19 , 1996).
In the present case, the State appeals the dismissal of an arrest wa rrant.
W e decline to base our decision on an exclusively literal interpretation of the
language of Rule 3 of the Tennessee Rules of Appellate Procedure because we
conclude that the State’s appeal is from a judgm ent entered b y the trial court
arising out of a crim inal pro secu tion an d is the refore prope rly before th is Court.
Tenn. R. App. P. 3. To hold otherwise would result in the trial court becoming the
final arbiter in deciding to dism iss a criminal warra nt, a result which we think
would contradict the policies underlying judicial review.
W e turn now to the principal issue before us, namely, whether the trial
court erred in dismissing the warrant charging the Defendant with driving under
the influence . The S tate cites Rule 7(b) of the Tennessee Rules of Criminal
Procedure, which allows for amendment of an indictment without the De fenda nt’s
consent provided that no additional offense is charged, no substantial rights of
-5-
the Defendant are prejudiced, and the amendment occurs before jeopardy
attaches. Tenn. R. Crim . P. 7(b). The State also points to cases in which the
court no tes that am endm ents of wa rrants, like a mend ments of indictments, are
within the discre tion and a uthority of the trial court. See Murff v. Sta te, 425
S.W.2d 286, 288 (Te nn. 1967); State v. Gross, 673 S.W.2d 552, 554 (Tenn.
Crim. App. 19 84). Th e State contends that the warrant in the present case was
prope rly ame nded prior to tr ial.
W hile the law is clear in Tennessee that a warrant may be amended, we
cannot agree that the proceedings in this case amount to an amendme nt of a
valid warrant, as suggested by the State. What the State seeks to characterize
as an “am endm ent” appears to have been a classic attempt to “make a silk purse
out of a sow’s ear.” Under Tennessee law, if a warrant does not meet procedural
and constitutional requirem ents, it is invalid. State v. Burtis, 664 S.W.2d 305(Tenn. Crim. A pp. 198 3). A void wa rrant inv alidate s all subsequent proceedings
emanating from the warrant. State v. Cam pbell, 641 S.W .2d 890 (Te nn. 1982).
No valid conviction can occur if the charging instrument is void. State v. Morgan,
598 S.W .2d 796, 797 (Tenn. Crim . App. 1979 ).
Proper proce dure in Tennessee for the issuance of a warrant requires that
the “affidavit of com plaint . . . be m ade up on oath before a magis trate or a neutral
and detache d court cle rk . . . .” Tenn. R . Crim. P . 3. Section 40-6-20 3 of the
Tennessee Code Annotated states: “Upon information made to any mag istrate
of the commission of a public offense, the magistrate shall examine, on oath, the
informant, reduce the examination to writing, and cause the examination to be
signed by the person making it.” Tenn. Code Ann. § 40-6-2 03. The magis trate
-6-
then reviews the affidavit of complaint to dete rmine wheth er ther e is pro bable
cause for an arrest. Tenn. R. Crim. P. 4 (a)-(b); Tenn. Code Ann. § 40-6-205.
Here, the affidavit supporting the warrant was not signed before issuance
of the warra nt. The S tate later attempted to remedy the omission by going before
a second judge who allowed a belated signature by the affia nt and who h imse lf
signed over the crossed-out signature of the judge who had formerly issued the
warran t. We must view the warrant at the time it was issued. Because there was
no affiant’s signature and thus no sworn statement to support the issuance of a
warran t, we find that the warrant at issue was never valid. Therefore, any attempt
to amen d it was inc onseq uential. A n ullity may no t be corre cted by a mend ment.
“If it’s void, it’s void.” Pro fessor E lvin E. Overton, University of Tennessee
College of Law.
As the trial court aptly noted, the State had a num ber of op tions at its
dispo sal. The State could have dismissed the defective warrant and reinstituted
proceedings against the Defendan t through , for instanc e, re-arres t, indictme nt,
or presen tment. See Tenn. R . Crim. P . 4; Wa ugh v. Sta te,564 S.W.2d 654(Tenn. 1978); Jones v. State, 332 S.W .2d 662, 667 (Tenn. 196 0) (noting that
indictment by grand jury nullifies questions regarding the sufficiency of the
warrant). However, at this time and without any further action on the part of the
State, we view any discussion of whether the State m ay now re institute
proceedings against the Defendant as premature.
The judgment of the trial court is affirmed.
-7-
__________________________________
DAVID H. WELLES, JUDGE
CONCUR:
_________________________________
CURWOOD WITT, JUDGE
_________________________________
WILLIAM H. INMAN, SENIOR JUDGE
-8-