         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     June 24, 2003 Session

                   STATE OF TENNESSEE v. LARRY S. REESE

                   Direct Appeal from the Circuit Court for Blount County
                         No. C-13093    D. Kelly Thomas, Jr., Judge



                                 No. E2002-02003-CCA-R3-CD
                                      November 14, 2003



NORMA MCGEE OGLE , J., dissenting.


         Because I disagree with the majority’s conclusion that there was no valid order of protection
at the time of the instant offense, I must respectfully dissent. Orders of protection are governed in
general by Tennessee Code Annotated sections 36-3-601 through 36-3-324. Initially, an ex parte
order of protection is issued, followed by a hearing to determine whether a permanent order should
be entered:

               (a) Upon the filing of a petition under this part, the courts may
               immediately, for good cause shown, issue an ex parte order of
               protection. An immediate and present danger of domestic abuse to
               the petitioner shall constitute good cause for purposes of this section.

               (b) Within fifteen (15) days of service of such order on the respondent
               under this part, a hearing shall be held, at which time the court shall
               either dissolve any ex parte order which has been issued, or shall, if
               the petitioner has proved the allegation of domestic abuse by a
               preponderance of the evidence, extend the order of protection for a
               definite period of time, not to exceed (1) year unless a further hearing
               on the continuation of such order is requested by the respondent or
               the complainant in which case, on proper showing of cause, such
               order may be continued for a further definite period of one (1) year
               after which time a further hearing must be held for any subsequent
               one-year period. Any ex parte order of protection shall be in effect
               until the time of the hearing. If no ex parte order of protection has
               been issued as of the time of the hearing, and the petitioner has
               proven the allegation of domestic abuse by a preponderance of the
               evidence, the court may, at that time, issue an order of protection for
               a definite period of time, not to exceed one (1) year.

               ©) The court shall cause a copy of the petition and notice of the date
               set for the hearing on such petition, as well as a copy of an ex parte
               order of protection, to be served upon the respondent at least five (5)
               days prior to such hearing. Such notice shall advise the respondent
               that the respondent may be represented by counsel.

Tenn. Code Ann. § 36-3-605. If an order of protection is entered following the hearing, the clerk of
the court is to provide copies to the parties and local law enforcement agencies having jurisdiction:

               A copy of any order of protection and any subsequent modifications
               or dismissal shall be issued to the petitioner, the respondent, and the
               local law enforcement agencies having jurisdiction in the area where
               the petitioner resides. The court issuing the order of protection or
               dismissal shall deliver such order or dismissal or a copy thereof to the
               county sheriff’s office or other law enforcement agency that processes
               orders of protection on a daily basis. If the respondent is a resident
               of Tennessee, then the officer serving the order of protection shall
               read the order to the respondent; however, if the respondent is not a
               resident of Tennessee, then the order of protection shall be served
               upon the respondent by mail in the manner as set forth in §§ 20-2-215
               and 20-2-216. Upon receipt of the copy of the order of protection or
               dismissal from the issuing court or clerk’s office, the local law
               enforcement agency shall immediately enter such order or dismissal
               in the Tennessee crime information system and take any necessary
               action to immediately transmit it to the national crime information
               center.

Tenn. Code Ann. § 36-3-609.

        In the instant case, the record reflects that on February 8, 2000, the sessions court issued an
ex parte order of protection. The order, which prohibited “any contact, direct or indirect,” with the
victim, was served by a sheriff’s deputy on February 10, 2000, “[b]y reading and giving a copy to
[the defendant].” Although the address provided for the defendant was the Westside Motel in
Maryville, he was located at the Salvation Army in Maryville. The order stated that the matter was
set for a hearing on February 28 and admonished the defendant that his “failure to appear in court
[would] result in judgment being rendered against [him].” On February 28, the sessions court
entered an order prohibiting the defendant for one year from “abusing, threatening to abuse . . ., or
committing any acts of violence upon” the victim, but allowing social contact so long as the
defendant behaved in a “peaceful and sober manner.”



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        It is uncontested that the defendant failed to appear at the hearing on February 28. It is
further uncontested that the defendant was not personally served with the order of protection entered
on that date until October 6, 2000. However, although not mentioned by either party, the record
reflects that service was attempted during the interim. A certificate of service dated March 6 recites
that the defendant was “not to be found in Blount County” and that the order was being returned to
the court. A notation by the court clerk indicates that the order was returned unserved and filed with
the court on August 21, 2000. The instant offense occurred approximately one month later.

        In my view, the inability of the sheriff and the court clerk to effect service upon the defendant
before the offense did not render the order of protection invalid. Our statutory scheme contains no
time requirements for service of an order of protection issued after a hearing. Additionally, although
the statutes prohibit the enforcement of an ex parte protective order that has not been served, see
Tenn. Code Ann. § 36-3-611(b), there is no such limitation on enforcement of a permanent
protective order. Here, personal service was attempted. However, because the defendant was
transient and living in various motels and shelters, he could not be found and service was not
completed. Nevertheless, through the ex parte order of protection that was properly served on him,
the defendant had knowledge of the proceedings and had knowledge that a judgment would be
entered against him should he fail to appear at the hearing on February 28. Accordingly, I conclude
that the order of protection issued by the sessions court on February 28 was valid and in effect at the
time of the instant offense. I would reverse the judgment of the trial court and remand for entry of
a judgment of guilty on the offense of aggravated assault.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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