           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                          June 20, 2000 Session

            JAMES EARL KIRK, ET AL. v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Maury County
                             No. 11263 Jim T. Hamilton, Judge



                  No. M1999-01369-CCA-OT-CO - Filed November 9, 2000


In this interlocutory appeal the State raises the question of whether the Maury County Circuit Court,
relying on Tenn. R. Crim. P. 5(a), erred by ordering that all proceedings in a case heard in general
sessions court must be heard in the court closest to the location of the offense. It is the opinion of
this Court that the plain language of Tenn. R. Crim. P. 5(a) controls the outcome of this case. The
controversy in this case turns on the word “nearest” as used in the statute. A cursory reading of the
statute could understandably lead one to believe that the term “nearest” was intended to convey
geographic proximity. However, such a narrow reading of the word does not yield the desired result
the Rule was intended to have, and cannot be read within the strict confines of the plain language
set forth therein. The term “nearest” is broader in scope than mere geographical distance. It is the
opinion of this Court that as used in Tenn. R. Crim. P. 5(a), “nearest” was intended to be analyzed
temporally.

           Tenn. R. App. P. 9 Interlocutory Appeal; Order of the Circuit Court of
                                   Maury County Vacated

JOHN EVERETT WILLIAMS, delivered the opinion of the court, in which DAVID H. WELLES              AND
JERRY L. SMITH, JJ., joined.

Paul G. Summers, Attorney General and Reporter; David F. Findley, Assistant Attorney General;
T. Michael Bottoms, District Attorney General; Robert C. Sanders, Assistant District Attorneys
General, for the appellant, State of Tennessee.

John S. Colley, III, Columbia, Tennessee, for the appellees, James Earl Kirk, Christopher Caldwell
and Homer Smith.

                                             OPINION

        A cursory reading of the plain language of Tenn. R. Crim. P. 5(a) does not render the result
the statute was designed to have. The term “nearest” is broader in scope than mere geographical
distance. It is the opinion of this Court that the word “nearest,” as used in Tenn. R. Crim. P 5(a),
was intended to be analyzed temporally. Further, Tenn. R. Crim. P. 5(a) speaks only to an initial
appearance and does not lay a structural foundation for the path subsequent proceedings are to
follow. Any proceedings following the initial appearance are not required to take place in the same
court where the initial appearance took place.

                                                         FACTS

       Pursuant to Chapter 254 of the Tennessee Private Acts of 1947, the General Sessions Courts
for Maury County were created. Part I of the Maury County General Sessions Court was placed in
Columbia, Tennessee and Part II of the Maury County General Sessions Court was placed in Mt.
Pleasant, Tennessee. Further, the jurisdiction of both parts was to be concurrent.1 No subsequent
amendments to Chapter 254 have disturbed this co-extensive existence.

        This interlocutory appeal is representative of a long standing dispute regarding which part
a defendant should be taken to for his or her initial appearance after being arrested. As this dispute
applies to this case, each of the defendants were taken before a judge in Mt. Pleasant after their
individual arrests. The defendants contend that they should have been taken before a judge in
Columbia because Columbia was geographically closer to where each defendant was arrested. The
only other distinction of relevance between the two courts is that Mt. Pleasant’s pre-set bonds are
as much as ten times higher than Columbia’s pre-set bonds.2

       Subsequent to the defendants’ initial appearances before the judge in Mt. Pleasant, they filed
a motion to transfer their cases to Columbia relying upon Tenn. R. Crim. P. 5(a). This motion was
denied by the General Sessions judge in Mt. Pleasant. The defendants then appealed the denial of
the motion to the Circuit Court for Maury County.

        After a hearing in the Circuit Court for Maury County, relying on Rule 5(a), the court ordered
in part as follows: “From this day forward, any and all proceedings on any charges of any person
arrested or cited for any offense, including traffic offenses, shall be held in the part of General
Sessions Court of Maury County, Tennessee, nearest to the geographical location of the offense or
offenses alleged.” The significance of this order is to divide the county, thereby limiting the
jurisdiction of the two General Sessions Courts to geographical boundaries within the county.
Further, it requires the arresting officer to determine where the offense occurred and to initiate
criminal charges only in the General Sessions Court closest in distance or geographical location.

        Finally, the State filed an application for a stay and a motion for permission to appeal
pursuant to Tenn. R. App. P. 9. The Circuit Court granted both the stay and the motion for
interlocutory appeal. This appeal is now properly before this Court.


         1
             The actu al language in th e Act uses the word “co -extensive,” a syn onym for co ncurrent.

         2
            We no te that one o f the defen dants file d a motion to re duce his bond. After a hearing by a Mt. Pleasant
judge, the defend ant’s bon d was red uced.

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                                                        ANALYSIS

       A number of contentions have been set forth by both parties in this appeal. To the extent
possible, these contentions will be addressed jointly. We will first address the contentions set forth
by the State.

                                                 Limiting Jurisdiction

        The State contends that the Maury County Circuit Court erred in ordering that all proceedings
in criminal cases must be heard in the General Sessions Court closest in geographical location to the
alleged offense. The defendants, however, contend that the order of the Circuit Court was correct.
In support of the State’s contention, the State argues that the Circuit Court, by its order, has
improperly limited the jurisdiction of the two Maury County General Sessions Courts. In furtherance
of this argument, the State sets forth that Article VI, § 1 of the Tennessee Constitution grants the
legislature the power to create courts of “general, special, or limited jurisdiction within a particular
county or locality.” Therefore, the State asserts that only the legislature, not a Circuit Court, may
expand or limit the jurisdiction of the inferior courts in Tennessee. We agree with the State.

        This Court acknowledges that both legislative mandates and private acts have conferred upon
Parts I and II of the Maury County General Session Court the jurisdiction to hear cases occurring
anywhere within the borders of Maury County. Further, absent an act of the legislature, the Circuit
Court cannot limit the jurisdiction of the General Sessions Courts. We note, however, that juvenile
cases have been specifically excepted. Jurisdiction to hear juvenile cases has been limited by
geographic proximity. 3

        As we read the statutes conferring jurisdiction on Part I and Part II, the statutes give both
parts concurrent jurisdiction to hear criminal offenses occurring in Maury County. When the
legislature created these courts by private act it did not limit their jurisdiction by geographical
boundaries within the counties.

                                                  Initial Appearances

       The State contends that Tenn. R. Crim. P. 5(a) applies only to initial appearances by criminal
defendants. The State argues that the title and plain language of the Rule limit it to initial
appearances only. We agree that Rule 5 applies only to initial appearances and does not apply to
subsequent proceedings.


         3
            The 19 82 Am endm ent to Chapter 254 of the Tennessee Private Acts of 1947, specifically Section 24,
provides that venue shall lie with the Maury Cou nty General Sessions Court located nearest to the geographical location
of the act wh ich gives rise to jurisdiction in a particula r case. It is clear this m andate is directed at juvenile proceedings
only.

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                            Appellate Authority of the Circuit Court

        The State contends that the Maury County Circuit Court did not possess the requisite
appellate authority to adjudicate this matter. The defendants, however, contend that the Maury
County Circuit Court did possess the requisite appellate authority to adjudicate this matter. In
support of their contention, the defendants cite Tenn. Crim. App. § 16-10-112, stating that this
section confers appellate jurisdiction on the Circuit Court to correct errors by a General Sessions
Court in criminal cases. We agree with the defendants that the Circuit Court did possess the
requisite appellate jurisdiction to hear this matter and that the appeal was properly before the Circuit
Court.

                                     Legislative Intent: “Near”

        The defendants contend that the language contained in Tenn. R. Crim. P. 5(a), “nearest
appropriate magistrate,” means nearest in geographical location. As such, the defendants argue that
their individual cases should be transferred to the other court, and that this is the appropriate remedy
for not originally taking them before the nearest geographically located judge. We disagree for
reasons set forth below. Further, in deciding this issue, we feel compelled to attempt to provide a
definitive interpretation of the language contained in Tenn. R. Crim. P. 5(a) as relates to these
defendants.

        The Tennessee Rules of Criminal Procedure are considered the “law” of this state, in full
force and effect until such time as they are superceded by legislative enactments, or inconsistent rules
are promulgated by the Supreme Court and adopted by the General Assembly. See Tennessee
Department of Human Services v. Vaughn, 595 S.W.2d 62 (Tenn. 1980). As applied to this case,
Tenn. R. Crim. P. 1 provides on its face that Rule 5 shall govern procedure in General Sessions
Courts of this state.

        Tennessee Rule of Criminal Procedure 5(a) states that “the initial appearance of any person
arrested except upon a capias pursuant to an indictment or presentment shall be taken without
unnecessary delay before the nearest appropriate magistrate of the county from which the warrant
for arrest issued, or the county in which the alleged offense occurred if the arrest was made without
a warrant unless a citation is issued pursuant to rule 3.5.” In a recent opinion written by the Attorney
General of the State of Tennessee on the issue of “arrest or citation in counties with more than one
general sessions court,” the Attorney General opined that any person arrested was to be brought
before the “nearest available magistrate.” OAG 99-149 (8/10/99). Unfortunately, the opinion of the
Attorney General’s office does not offer any guidance in terms of legislative intent when examining
the word “nearest” in Tenn. R. Crim. P. 5(a).

         We acknowledge that on its face, Tenn. R. Crim. P. 5(a) may appear to mandate that the
initial appearance of any person arrested must be before the geographically “nearest” appropriate
magistrate of the county from which the warrant for arrest issued, or the county in which the alleged


                                                  -4-
offense occurred. However, this Court does not believe that this was the intent of the Rule. A
narrow interpretation of the word “nearest” in Rule 5 would thwart the purpose of the Tennessee
Rules of Criminal Procedure. The purpose of Rule 5 is to provide for the just determination of every
criminal proceeding, and should be construed to secure simplicity in procedure, fairness in
administration, and the elimination of unjustifiable expense and delay. See Tenn. R. Crim. P. 2.

         Black’s Law Dictionary sets forth that the word “near” has several different meanings
separate from that of geographic proximity. Blacks Law Dictionary 1029 (6th ed. 1990). One of the
specific definitions set forth in Black’s Law Dictionary is that “near” means “not far distant in time.”
Id. It is this definition, within the plain language of the word, that this Court believes was the intent
of the Rule.

        We conclude that the Rule intended temporal proximity when using the word “near” as a
means of assuring that history does not repeat itself. This provision is a safeguard designed to ensure
that a person who is arrested is not allowed to languish in a jail cell, or worse, be forgotten. State
v. Readus, 764 S.W.2d 770, 773 (Tenn. Crim. App. 1988). “ The purpose of [this] rule was to insure
the vitality of the presumption of innocence” by the prompt and neutral determination of probable
cause by a magistrate after arrest. “The magistrate’s role ... [is] to assure that constitutional rights
[are] protected. Amongst [these] rights [are] the presumption of innocence, the right to bail, the right
to counsel, and the right to be free from self-incrimination.” State v. Huddleston, 924 S.W.2d 666,
677 (Tenn. 1996). As the Rule intended, a person is to be taken before a magistrate as soon as
practical after being arrested.

        In seeking the meaning of the word “nearest” in the context of the rule, we must look to the
purpose of the rule. We do not believe that it is helpful to interpret the rule in such a manner as to
contemplate or encourage debates over whether distances should be measured “the way the road
goes” or “the way the crow flies.” We also see no reason to suggest that it is crucial to determine
whether one general sessions courtroom is a few moments closer to the “scene of the crime” than
the other. If it appears that both general sessions judges are generally equally available within the
county, then we believe Rule 5(b) contemplates that either one will be acceptable.

                                       Due Process Violations

        The defendants contend that the procedure utilized by the officers of Maury County in
someway violates their right to due process. A thorough review of the record reveals no due process
violations. This contention is without merit.

                                                Venue

        In our review of the record, the court took note of the motion filed by the defendants seeking
to change venue from one court within the county to another court within the county. We believe
that if we were to conclude this opinion without a brief comment on this motion we would be
prematurely concluding our analysis. With regards to a motion to change venue within a county, this


                                                  -5-
Court is unaware of any proceeding heretofore that would recognize a right to change venue within
a county. Therefore, when a defendant feels aggrieved by the court in which he or she was taken,
the appropriate remedy would be to contest the jurisdiction of the court hearing the case. The
defendants’ motion contesting venue was not proper.


                                          CONCLUSION

        It is the opinion of this Court that Tenn. R. Crim. P. 5(a) applies only to initial appearances
of criminal defendants. Continuing, as used in Tenn. R. Crim. P. 5(a), “nearest” is broader in scope
than mere geographical distance and was intended to be analyzed temporally. Finally, the order set
out by the Maury County Circuit Court has usurped power specifically granted to the legislature and
therefore, cannot stand.




                                                       ____________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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