        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:

                                            -3-
             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

                                         -4-
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.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



                                         -5-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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