State v. Leach ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1998 SESSION March 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. 03C01-9609-CR-00350
) ANDERSON COUNTY
)
Appellant, ) Hon. James B. Scott, Judge
)
vs. ) (DRIVING UNDER THE
) INFLUENCE)
) Nos. 95CR063 & 95CR0284
MICHAEL D. LEACH, )
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES W. BURSON MICHAEL G. HATMAKER
Attorney General & Reporter P.O. Box 417, 571 Main Street
Jacksboro, TN 37757
SANDY R. COPOUS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
JAMES N. RAMSEY
District Attorney General
JAN HICKS
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716
OPINION FILED:_______________
REVERSED AND REMANDED
CORNELIA A. CLARK
Special Judge
OPINION
The State of Tennessee appeals from the action of the Anderson
County Criminal Court dismissing the indictment against the appellee for
driving under the influence of an intoxicant. The trial court held that
defendant’s prosecution violated his right against double jeopardy. The
judgment of the trial court is reversed.
The procedural history of this case is complicated. On October 2, 1994,
pursuant to a valid warrantless arrest, the defendant Michael D. Leach was
charged with driving under the Influence of an Intoxicant. The arresting officer
used a citation form identifying the defendant, the vehicle, the date and time of
the offense, the name of the offense, and the fact that defendant registered a
blood alcohol level of .20. The citation did not set out any narrative facts of the
offense. It was apparently issued in violation of Tenn. Code Ann. §40-7-118.
On January 3, 1995, the arresting officer filed an Affidavit of Complaint
in the Anderson County General Sessions Court. That affidavit set forth the
date of the offense, the charge for which the defendant was arrested, the
defendant’s blood alcohol level, and a narrative of the facts underlying the
arrest. The affidavit did not state the name of the defendant, but did contain a
notation to “see cit,” apparently referring to the citation issued on the night of
the arrest.
The defendant waived his right to trial by jury, entered a plea of not
guilty, and commenced the trial of his case in general sessions court. By
agreement with the State, defendant waived the right to a de novo appeal on
the merits, but reserved the right to appeal any technical defects. After the first
witness was sworn the defendant filed a motion to dismiss based on the
insufficiency of the charging instrument. The judge denied the motion, heard
the proof in the case, and found the defendant guilty of driving under the
influence of an intoxicant. The defendant appealed his case to the Anderson
County Criminal Court.
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On June 23, 1995, the trial court conducted a de novo hearing on the
sufficiency of the charging instrument. The trial court ruled that the citation did
not constitute a legal charging instrument. The court further found that the
Affidavit of Complaint, which constituted the charging instrument, was
insufficient because it did not contain the name of the defendant. On July 11,
1995, the trial court entered an order dismissing the charge against the
defendant. No appeal was taken from that decision.
On August 1, 1995, the State submitted the case to the grand jury, and
the grand jury returned the indictment in this case charging the defendant with
driving under the influence of an intoxicant. The defendant again filed a
motion to dismiss, asserting that prosecution was barred based on principles of
double jeopardy. He claimed that jeopardy initially attached in general
sessions court. A hearing was conducted July 15, 1996 and the trial court
agreed with his position and dismissed the indictment in this case.
The law is well settled that jeopardy generally attaches in a court of
competent jurisdiction when the first witness in a bench trial is sworn. State v.
Daniels, 531 S.W. 2d 795 (Tenn. Crim. App. 1975). However, no valid
prosecution can occur if the charging instrument is insufficient. State v.
Morgan, 598 S.W. 2d 796 (Tenn. Crim. App. 1979). Therefore, if a charging
instrument is insufficient, no offense has been charged and any subsequent
proceedings on the instrument are a nullity. State v. Perkinson, 867 S.W. 2d
1, 6 (Tenn. Crim. App. 1992).
Our decision in this case is governed by State v. Campbell, 641 S.W. 2d
890 (Tenn. 1982). In that case the defendant was convicted in general
sessions court of the offense of driving while intoxicated. On appeal to the
Criminal Court, the defendant filed a motion to dismiss on the grounds that the
arrest warrant was void because it lacked a magistrate’s signature. The trial
court agreed. The State then obtained a grand jury presentment on the same
charge. The defendant filed a motion to dismiss the presentment on double
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jeopardy grounds. The trial court agreed and dismissed the presentment.
This court affirmed the decision of the trial court. The Supreme Court
reversed, holding that since the initial warrant was void, all the proceedings
and the judgment that followed were invalid. The Court concluded that “in a
case where the defendant seeks and obtains the invalidation of the judgment
and dismissal is based on technical or procedural grounds, there is no former
jeopardy problem in retrial.” Campbell, 641 S.W. 2d at 893. The
decision in Campbell controls this case. Neither party contends that the initial
charging instrument was valid. Because that instrument was void, all
proceedings instituted under it were invalid. Jeopardy has not attached in this
case, and the subsequent indictment is valid.
For the reasons set forth above, we reverse the decision of the trial
court. The case is remanded for further proceedings consistent with this
opinion.
_____________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
____________________________
JOHN H. PEAY
JUDGE
____________________________
PAUL G. SUMMERS
JUDGE
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