                                                                                       09/26/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                 June 5, 2019 Session

 STATE OF TENNESSEE v. RONTAVIOUS S. FERGUSON and TRAMON
                          T. KEY

                  Appeal from the Circuit Court for Dyer County
          Nos. 16-CR-140, 16-CR-140A William B. Acree, Senior Judge
                    ___________________________________

                          No. W2018-01908-CCA-R3-CD
                      ___________________________________

The State appeals from the trial court’s dismissal with prejudice of a two-count
indictment against the Defendants, Rontavious S. Ferguson and Tramon T. Key, for
attempted second-degree murder and attempted aggravated robbery. The State contends
that it had discretion to nolle prosequi the charges and that dismissal without prejudice
would not have placed the public interest at stake. After review, we affirm the dismissal
of the indictment against the Defendants but remand to the Dyer County Circuit Court for
entry of an amended order dismissing the case without prejudice.

  Tenn. R. App. P Appeal as of Right; Judgments of the Circuit Court Affirmed in
                       Part; Reversed in Part; Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Danny Goodman, Jr., District Attorney General; and Lance Webb,
Assistant District Attorney General, for the appellant, State of Tennessee.

Noel H. Riley, II, Dyersburg, Tennessee, for the appellee, Rontavious S. Ferguson.

Hal James Boyd, Tiptonville, Tennessee, for the appellee, Tramon T. Key.


                                       OPINION

                    FACTUAL AND PROCEDURAL HISTORY
        On June 13, 2016, the Defendants were indicted for attempted second-degree
murder and attempted aggravated robbery. The trial court conducted a hearing on July
24, 2018, for the purpose of setting a trial date. During that hearing, the court noted that
it had been designated to hear the case after the previous judge recused himself, and the
court alluded to the fact that the case had been set for trial on at least two previous
occasions. The State advised the court that there would be few witnesses and that the
case was very factually uncomplicated. With consent of the parties, the case was set for
trial on September 19, 2018.

       On September 26, 2018, the trial court entered an order dismissing the indictment
with prejudice. In its order, the court explained that the day before the scheduled trial
date of September 19, the State advised the court that it intended to enter an order of nolle
prosequi because the victim was out of state for work, and it learned from the defense the
day before that a witness whom the State had not subpoenaed because he said he did not
know anything about the crimes would testify on behalf of the defense as to facts
previously unknown by the State. The court determined that even though the Defendants
were not opposing the State’s request to enter an order of nolle prosequi, the case should
be dismissed with prejudice “because the State is unprepared for trial while the [c]ourt
and the Defendants are properly prepared for trial.”

       At the dismissal hearing, the following exchange occurred between the court and
the State:

       State: . . . [W]e have decided to nolle this case. . . . [A] couple of reasons,
               one, the victim is actually in North Carolina with his company.
               They are doing something related to hurricane repair or relief or
               something. . . .

       Court: When did you learn this?

       State: I actually didn’t find that out until yesterday –

       Court: Why did you not find that out until yesterday?

       State: Because I was trying to find out –

       Court: Why did you not find that out until yesterday?

       State: Well, Judge, I just called him to talk to him about the trial to find out
              when he was going to be here. I didn’t –

                                             -2-
      Court: The victim?

      State: He lives in middle Tennessee, but his company has sent him to North
             Carolina.

      Court: Yes, sir. So we were going to trial today and you call him yesterday
             to talk to him about –

      State: Yes, sir. I had talked to him before, but he wasn’t in North Carolina
             when I talked to him last week. But in any event, the other main
             reason was that there was a witness that the State had excused
             previously and did not subpoena this time, but we found out that he
             has changed his testimony and is now going to testify for the
             Defense. And, it would have been very damaging to our case and so
             we’ve decided – I don’t know if this case will be re-indicted or not.

      Court: I don’t think so. I’m going to dismiss it with prejudice.

      State: Well, Judge, I mean, we’re asking [t]he [c]ourt to nolle pros this case
             and we have the right to do that.

      Court: Yes, sir, but under the circumstance, . . . you come into court and
             you don’t prepare the case until yesterday –

             ....

      Court: The defendants come in ready for trial and you find out yesterday
             you’re not going to try the case. The [c]ourt is ready for trial.
             Everybody is ready for trial but you.

      Accordingly, the trial court dismissed the case with prejudice, and the State
appealed.

                                      ANALYSIS

      The State argues that the trial court erred in dismissing the indictment against the
Defendants with prejudice because public interest was not at stake and the State had
broad authority to nolle prosequi the charges based on unforeseeable changes in
circumstances the night before trial.



                                          -3-
       Tennessee Rule of Criminal Procedure 48(b) allows a trial court to dismiss an
indictment, presentment, information, or complaint if “unnecessary delay occurs in . . .
bringing a defendant to trial.” Tenn. R. Crim. P. 48(b). In State v. Benn, our supreme
court set forth certain principles relating to a trial court’s dismissal of an indictment
pursuant to Rule 48(b) as follows:

               The factors to be considered in passing on a motion to dismiss under
       Rule 48(b) where there has been no constitutional violation are the length
       of the delay, the reasons for the delay, the prejudice to defendant, and
       waiver by the defendant. . . . When it is found to be appropriate to dismiss
       with prejudice, the trial judge must make express findings of fact on each of
       the relevant factors listed herein.

713 S.W.2d 308, 311 (Tenn. 1986). Moreover, dismissal with prejudice for failure to
prosecute, which does not arise from a constitutional violation, should be utilized with
caution and only after a forewarning to the prosecutor of the consequences. Id. at 310.
The decision whether to dismiss an indictment lies within the discretion of the trial court.
State v. Harris, 33 S.W.3d 767, 769 (Tenn. 2000).

        Again, as noted by our supreme court in Benn, “[w]hen it is found to be
appropriate to dismiss with prejudice, the trial judge must make express findings of fact
on each of the relevant factors listed.” Benn, 713 S.W.2d at 311 (emphasis added). We
have thoroughly reviewed the dialogue between the trial court and the parties at the
dismissal hearing, as well as the trial court’s written order of dismissal, and the trial court
failed to make express findings of fact on each of the factors listed in Benn. Accordingly,
we conclude that while dismissal of the indictment was within the discretion of the trial
court, dismissal with prejudice was not justified. See State v. Christopher Carney and
Anthony Mitchell, No. W2007-00705-CCA-R3-CD, 2008 WL 1700230, at *2-3 (Tenn.
Crim. App. Apr. 8, 2008) (concluding that the trial court abused its discretion in
dismissing indictments based on delayed laboratory reports, as it did not make express
findings of fact required by Benn and the record contained no evidence of prejudice);
State v. Steve Paige, No. W2001-03045-CCA-R3-CD, 2003 WL 839809, at *3 (Tenn.
Crim. App. Mar. 4, 2003) (concluding that dismissal with prejudice was an abuse of
discretion because the trial court did not make express findings or adequately warn the
prosecutors). Therefore, we affirm the dismissal of the indictment but remand to the trial
court for entry of an amended order dismissing the case without prejudice.




                                             -4-
                                  CONCLUSION

      Based upon the foregoing, we affirm the dismissal of the indictment against the
Defendants but remand to the Dyer County Circuit Court for entry of an amended order
dismissing the case without prejudice.




                                 JOHN EVERETT WILLIAMS, PRESIDING JUDGE




                                        -5-
