                                                                                                       03/18/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 18, 2020 Session

                              STATE OF TENNESSEE v. S.L.

                     Appeal from the Circuit Court for Blount County
                      No. C-25156    Tammy M. Harrington, Judge


                                 No. E2019-01268-COA-R3-CV


This appeal presents the question of who has the duty to set a case for trial de novo when
a defendant appeals a delinquency conviction from juvenile court to circuit court. The
then-minor child S.L. (“Defendant”) was charged with rape and incest.1 After a trial, the
Blount County Juvenile Court (“the Juvenile Court”) found that Defendant had
committed these delinquent offenses. Defendant appealed to the Circuit Court for Blount
County (“the Circuit Court”) for trial de novo as provided for by statute. Defendant
proceeded to do nothing regarding his appeal for around two years. Eventually, the State
of Tennessee (“the State”) filed a motion to dismiss for failure to prosecute, which the
Circuit Court granted. Defendant appeals to this Court arguing that, notwithstanding his
long stretch of inactivity, he has a right to trial de novo. We hold that under Tenn. Code
Ann. § 37-1-159(c) it was the Circuit Court’s duty—not Defendant’s—to set his case for
trial. We reverse the judgment of the Circuit Court and remand for Defendant to have his
trial de novo, which is to be expedited.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                    Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Lance A. Evans, Maryville, Tennessee, for the appellant, S.L.

Herbert H. Slatery, III, Attorney General and Reporter, and Courtney N. Orr, Assistant
Attorney General, for the appellee, the State of Tennessee.




1
 Defendant has since reached the age of majority. However, given this case’s origin as a juvenile matter,
we deem it appropriate to refer to Defendant by his first and last initials.
                                       OPINION

                                      Background

       The relevant background facts are exceedingly brief. In July 2016, Defendant,
then 17 years old, was charged with raping his sister, a 9-year-old child. After a
September 2016 hearing, the Juvenile Court determined that Defendant was a candidate
for rehabilitation and should not be tried as an adult.

       On May 16, 2017, trial was held in the Juvenile Court. In its adjudicatory and
dispositional hearing order, the Juvenile Court found that Defendant had committed rape
and incest, delinquent offenses pursuant to the applicable statutes. Among other things,
Defendant was ordered to undergo a psychosexual assessment with a Tennessee
Department of Correction certified sexual offender treatment provider and follow all
treatment recommendations. Defendant was ordered further to register immediately as a
Violent Juvenile Sexual Offender and comply with all Violent Juvenile Sexual Offender
Registry requirements. Defendant was to have no contact with the victim. On May 18,
2017, Defendant filed an appeal to the Circuit Court for trial de novo.

       Defendant then dropped out of contact with his attorneys. In March 2018,
Defendant’s two attorneys filed a motion to withdraw from their representation of
Defendant “because he has failed to maintain contact with Movants.” In May 2018, the
attorneys’ motion was granted. In April 2019, the State filed a motion to dismiss for
failure to prosecute, asserting that “Defendant has taken no action on his Notice to
Appeal in this matter since it was filed on May 18, 2017.” In May 2019, the Circuit
Court appointed one of Defendant’s previous attorneys, Lance A. Evans, to represent him
again. On June 3, 2019 and July 1, 2019, hearings regarding the State’s motion to
dismiss were conducted before the Circuit Court. On July 1, 2019, the Circuit Court
entered an order granting the State’s motion to dismiss. Defendant timely appealed to
this Court.

                                       Discussion

       Although not stated exactly as such, Defendant raises one issue on appeal: whether
the Circuit Court erred by dismissing his appeal from the Juvenile Court for failure to
prosecute.

       In support of his contention that the Circuit Court erred, Defendant points to Tenn.
Code Ann. § 37-1-159(a), which provides in relevant part that “[t]he juvenile court shall
be a court of record; and any appeal from any final order or judgment in a delinquency
proceeding, filed under this chapter, except a proceeding pursuant to § 37-1-134, may be
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made to the criminal court or court having criminal jurisdiction that shall hear the
testimony of witnesses and try the case de novo. . . .” Tenn. Code Ann. § 37-1-159(a)
(2014) (emphasis added). Defendant argues that this language is mandatory and leaves
no room for dismissal for failure to prosecute. Defendant contends also that as a
defendant in what he categorizes as a criminal matter, he was under no duty to prosecute
himself, a proposition articulated by the Supreme Court of the United States. Barker v.
Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In addition, Defendant
invokes several cases from other jurisdictions to support his stance that the duty to set his
case for trial was not his. In response, the State argues that juvenile defendants are not
constitutionally entitled to a speedy trial, but even if they are, their right to a speedy trial
is satisfied by the juvenile court proceedings and that they have the duty to set their cases
for trial de novo when appealing to circuit court. In his reply brief, Defendant asserts that
the State misapprehends his position; this is not a speedy trial case, he states, but rather a
case about his right to trial de novo.

         While the parties spend considerable time arguing the relevance of cases from
other jurisdictions, the answer to the issue presented appears to come from our own
state’s statutes. Tenn. Code Ann. § 37-1-159(c) provides as follows:

       (c) When an appeal has been perfected, the juvenile court shall cause
       the entire record in the case, including the juvenile court’s findings and
       written reports from probation officers, professional court employees or
       professional consultants, to be taken forthwith to the criminal court or
       circuit court whose duty it is, either in term or in vacation, to set the case
       for an early hearing. When an appeal is taken from a juvenile court’s
       decision that involves the removal of a child or children from the custody
       of their natural or legal parents or guardian or from the department of
       children’s services, or when the decision appealed involves the deprivation
       of a child’s liberty as the result of a finding that such child engaged in
       criminal activity, such hearing shall be held within forty-five (45) days of
       receipt of the findings and reports. In its order, the criminal court or circuit
       court shall remand the case to the juvenile court for enforcement of the
       judgment rendered by the criminal court or circuit court. Appeals from an
       order of the criminal court or circuit court pursuant to this subsection (c)
       may be carried to the court of appeals as provided by law.

Tenn. Code Ann. § 37-1-159(c) (2014) (emphasis added).2


2
 Tenn. Code Ann. § 37-1-159 has since been amended elsewhere, but subsection (c) has not changed.
The subsection read this way on May 18, 2017 when Defendant filed his appeal to the Circuit Court.
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       Neither party addressed this highlighted language in their briefs. Nevertheless, in
our judgment, it resolves the matter. The meaning is unambiguous with only one
reasonable interpretation. It is the duty of the circuit court, not the juvenile defendant, to
set a case for an early hearing when the juvenile defendant perfects an appeal to circuit
court. Here, it is undisputed that Defendant perfected his appeal to the Circuit Court.
Pursuant to Tenn. Code Ann. § 37-1-159(c), the Circuit Court had the “duty … to set the
case for an early hearing.” It did not. Instead, the Circuit Court granted the State’s
motion to dismiss for failure to prosecute. This was in error. Having perfected his appeal
to the Circuit Court, Defendant could not forfeit his right to trial de novo by failing to set
his case for trial when that was the Circuit Court’s duty by statute. We, therefore, reverse
the judgment of the Circuit Court and remand this case for Defendant to have his trial de
novo, which is to be expedited.

                                        Conclusion

       The judgment of the Circuit Court is reversed, and this cause is remanded to the
Circuit Court for collection of the costs below and for further proceedings consistent with
this Opinion. The costs on appeal are assessed against the Appellee, the State of
Tennessee.


                                           _____________________________________
                                           D. MICHAEL SWINEY, CHIEF JUDGE




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