State v. Foulks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1998 August 17, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9711-CR-00512
)
Appe llant, )
)
) 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 Avenu e 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
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), 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 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 Valiga filed an affidavit o f com plaint a gains t Defe ndan t for “con tractor ’s
fraud.” In his Affidavit of Complaint, Valiga asserted that Defendant and Robert
W adde ll contracted to build his home but terminated their employment while the
house was s ubsta ntially les s than one-h alf com plete. V aliga a lso 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
warran t, along with a “misdemeanor citation” which incorporated the warrant by
reference, was executed and returned on October 8, 1992. Unfortun ately, 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 1 0, 1993 . The
citation of Ju ne 7 also incorpor ated by re ference the prior w arrant.
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 Tennesse e, upo n their
oaths, present that ROBERT H. WADDELL, ALIAS AND JOHN
GRAVES, ALIAS , heretofore, to-wit: On or about 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 Valiga, use the proceeds of payment made to them on
account of improving ce rtain real property for purp oses other than
to pay for labor p erform ed an d ma terials fu rnishe d by ord er for th is
spec ific 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 pros ecution w as com menc ed by the swearin g out of a
warrant in the General Sessions Court for Knox County, Tennessee,
on the 8 th day of O ctober, 1 992 . . . .
The Defendant filed a motion “to dismiss the indictment and/or grant 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 filed an amendme nt to the motion to dismiss which
included an assertion that the statute of limitations barred the prosecutio n.
Following argument on Defenda nt’s Motion to Dism iss, the trial court sum marily
dismissed the case. The only statement the trial judge 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 that the applicable statute of limitations
does not bar its 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 offense charged in the
indictment, read:
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Any contractor, subcontractor, or o ther pe rson w ho, with intent
to defraud, shall use the proceeds of any payment made to him on
account of improving ce rtain real property for any o ther purpose
than to pay fo r labor p erform ed on , or ma terials fu rnishe d by his
order for, this s pecific impro veme nt, while any amount for which he
may be or become liable for such labor 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) (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 tha n as specified in su bsections (a) or (b ),
shall be comm enced within fou r (4) years next after the commission of the
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 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 un til Octobe r 2, 1992, to comm ence p rosecu tion. 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, a nd there is no evide nce in the record th at the cou rt ever
dismissed or otherwise disposed of the 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 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. Ther efore, th is
record does n ot supp ort a finding that this action commenced outside the
approp riate 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 pro ceedin gs.
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DAVID H. WELLES, JUDGE
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CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
JOSEPH M. TIPTON, JUDGE
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