        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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