            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                                  AT KNOXVILLE                     June 4, 1999

                                MARCH 1999 SESSION               Cecil Crowson, Jr.
                                                                Appellate C ourt
                                                                    Clerk

STATE OF TENNESSEE,                      )       C.C.A. 03C01-9804-CC-00158
                                         )       ANDERSON COUNTY
                                         )
             Appellant,                  )       Hon. James B. Scott, Jr., Judge
                                         )
vs.                                      )       (STATE APPEAL - REMAND
                                         )       TO GENERAL SESSIONS)
                                         )       NO. 98CR0038
                                         )
ANNE K. HOSFORD,                                 )
                                         )
              Appellee.                  )



FOR THE APPELLANT:                               FOR THE APPELLEE:


JOHN KNOX WALKUP                                 MICHAEL W. RITTER
Attorney General & Reporter                      131 E. Tyrone Road
                                                 Oak Ridge, TN 37830
ELLEN POLLACK
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243

JAMES N. RAMSEY
District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716

JAN HICKS
Assistant District Attorney
127 Anderson County Courthouse
Clinton, TN 37716


OPINION FILED:_______________


MODIFIED AND DISMISSED


CORNELIA A. CLARK
Special Judge
                                        OPINION

       The State of Tennessee appeals as of right from the trial court’s remand to the

general sessions court of a one-count indictment charging the appellee, Anne K.

Hosford, with the misdemeanor offense of driving under the influence of an intoxicant.

We modify the judgment of the trial court and dismiss the indictment.

                                    BACKGROUND

       This case presents a procedural nightmare. The paucity of the record further

complicates the court’s attempt to make a complete determination of the issues.1

An arrest warrant was issued for the appellee on September 30, 1997. The warrant

reflects that an automobile accident occurred in Oak Ridge, Anderson County,

Tennessee on September 24, 1997. One vehicle left the scene just prior to the arrival

of police officers. Subsequent investigation resulted in the location shortly thereafter

of the vehicle and the appellee, who admitted being the driver. At that time the

investigating police officer observed the appellee to have a strong odor of alcoholic

beverage on her breath and about her person. He stated that her eyes were red and

glassy and that she was unsteady on her feet. She then failed field sobriety tests and

refused a blood alcohol test. She was arrested for driving under the influence of an

intoxicant.

       On one or more dates after appellee’s arrest, a preliminary hearing was

scheduled in general sessions court. The hearing was then rescheduled to December

10, 1997. Defendant filed a motion to suppress and appeared in court on December

10 for the hearing on both matters. The arresting officer did not appear and the case

was rescheduled to January 14, 1998. On that date defendant appeared again, along

with a witness. Some testimony was received by the general sessions court judge,

but he apparently ran out of time on his calendar. He continued the hearing again to

February 11, 1998, the prosecuting officer’s next available court date.



1
  The Record does not contain a transcript or other evidence of any of the
proceedings conducted in the general sessions court. A portion of the January
transcript was mentioned but was not offered into evidence during the March 20, 1998
hearing conducted in the trial court. At that hearing an assistant district attorney
testified under oath about his recollection of the hearings below. On May 1, 1998,
during the pendency of this appeal, appellee filed a Motion to Supplement the Record,
to include a transcript of the proceedings in general sessions court on January 14,
1998. The state opposed this motion. No action by the trial judge is reflected. The
record was certified to this court without the transcript requested.
                                             2
       On February 3, 1998, the District Attorney presented the case to the Anderson

County Grand Jury, which returned an indictment against appellee for driving under

the influence of an intoxicant. The state did not inform the appellee or defense

counsel about the indictment until they next appeared in general sessions court on

February 11, 1998. On March 5,1998, appellee filed in the Anderson County Criminal

Court a motion to remand for preliminary hearing or in the alternative to dismiss.

       On March 20, 1998, the trial court conducted a hearing on that motion. The

court stated that it was “hard for him to find that the prosecutor was acting in bad

faith," but he remanded the case to the general sessions court for any further

suppression hearing left undecided, and any other necessary proceedings.

                                        ANALYSIS

       The state contends that because the appellee had already been indicted for

driving under the influence, and the trial court denied her motion to dismiss the

indictment, the trial court erred in remanding the case back to general sessions court.

The state relies on State v. Hudson, 487 S.W. 2d 672, 676 (Tenn. Crim. App. 1972),

in asserting that, after indictment, a general sessions judge has no authority or power

to proceed with a preliminary hearing and to re-determine the same question of

probable cause. The state also asserts that the trial court did not specifically find that

the prosecutor had acted in bad faith, so that appellant was not entitled to a dismissal

of the indictment more than thirty days after her arrest. The appellee asserts that the

trial court’s ruling represents an implicit finding of bad faith on behalf of the state.

        Tennessee law is clear that, while a preliminary hearing is not constitutionally

required, it is a critical stage of a criminal prosecution mandated by statutory law.

Moore v. State, 578 S.W. 2d 78, 80 (Tenn. 1979); Waugh v. State, 564 S.W. 2d 654,

659 (Tenn. 1978). The primary function of a preliminary hearing is to determine

whether probable cause exists to believe that the accused committed the offense

charged, and to fix the amount of bail for bailable offenses. Tenn. R. Crim. P. 5.1;

State v. D’Anna, 506 S.W. 2d 200, 203 (Tenn. Crim. App. 1973). It is also

fundamental that motions to suppress illegally seized evidence are appropriate at the

preliminary hearing. State v. Golden, 941 S.W. 2d 905, 907 (Tenn. Crim. App. 1996).




                                              4
          Rule 5(e) of the Tennessee Rules of Criminal Procedure provides as follows:

                 Any defendant arrested prior to indictment or presentment
                 for any offense . . . shall be entitled to a preliminary hearing
                 upon his request therefor, whether the grand jury of the county
                 be in session or not. If the defendant is indicted during the period
                 of time in which his preliminary hearing is being continued, or at any
                 time before the accused has been afforded a preliminary hearing on a
                 warrant, whether at his own request or that of the prosecutor, he may
                 dismiss the indictment upon motion to the court. Provided, however,
                 that no such Motion to Dismiss shall be granted after the expiration of
                 thirty days from the date of defendant’s arrest.

The Tennessee Supreme Court in Moore v. State, 578 S.W. 2d 78, 82 (Tenn. 1979),

created an exception to the thirty day rule, holding that:

                 [T]he thirty-day limitation . . . is applicable only when all parties -
                 including the defendant, who must act promptly-have acted in good
                 faith and in compliance with the statute. The failure of the court or the
                 prosecution to exercise good faith and to abide the law operates to toll
                 the statute and preclude its invocation.

Thus, the question central to our review is whether the state or the general sessions

court acted in “bad faith” to deprive the appellee of her right to a preliminary hearing.

          Although the record is sketchy, it is clear that all of the continuances sought in

the general sessions court were at the request of the prosecution (apparently to avoid

dismissal when the prosecuting officer did not appear) or the court itself (to

accommodate the court’s schedule). In this case the defendant flew from out of state

and appeared in court on two or more occasions ready and able to proceed with the

preliminary hearing she had requested. The state’s prosecuting witness failed to

appear on two occasions. On January 14, 1998, the general sessions judge actually

began the hearing, but recessed before completion because of a prior personal

commitment. The state apparently made no objection when the judge announced he

had to leave early, and agreed to the proposed new date. To allow the state to

benefit from the thirty-day provision of Rule 5(e) because its prosecuting witness

failed to appear, or because the judge recessed the hearing before its completion,

does not “abide the law” nor serve the ends of justice. Accordingly, although the

actions may not have originated from malicious intent, they are deemed to be in “bad

faith” sufficient to preclude the invocation of the thirty-day rule. Golden, 941 S.W. 2d

at 908.




                                               5
       For the reasons stated above, we modify the judgment of the trial court, and

dismiss the indictment.2




                                               ____________________________
                                               CORNELIA A. CLARK
                                               SPECIAL JUDGE




_______________________________
GARY R. WADE
JUDGE



_______________________________
NORMA M. OGLE
JUDGE




           _




2
       We note that a decision of the general sessions court to suppress the
evidence in questions does not prohibit the state from presenting that evidence to the
grand jury and does not bind the trial court as to its later admissibility at trial. See
State v. Dixon, 880 S.W. 2d 696, 697 (Tenn. Crim. App. 1992). However, the
appellee has the right to insist that correct procedures are followed before she may be
brought into criminal court on these charges.
       Because we dismiss the indictment, it is not necessary to consider the state’s
request to treat this as a Rule 10 appeal.
                                              5

                                           6
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                            MARCH 1999 SESSION


STATE OF TENNESSEE,                         )     C.C.A. 03C01-9804-CC-00158
                                            )     ANDERSON COUNTY
                                            )
              Appellant,                    )     Hon. James B. Scott, Jr., Judge
                                            )
vs.                                         )     (STATE APPEAL - REMAND
                                            )      OF INDICTMENT)
                                            )     NO. 98CR0038
                                            )
ANNE K. HOSFORD,                                  )
                                            )
              Appellee.                     )




                                  JUDGMENT

        Came the appellant, the State of Tennessee, represented by the
Attorney General’s office and also came the attorney of record for appellee,
Anne K. Hosford, and this case was heard on the record on appeal from the
Circuit Court of Anderson County; and upon consideration thereof, this court is
of the opinion that there is reversible error in the judgment of the trial court.

       Our opinion is hereby incorporated in this judgment as if set out
verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is modified, and the indictment is dismissed.

       Costs of this appeal will be paid by the State of Tennessee.

                                            PER CURIAM

                                            Gary R. Wade, Judge
                                            Norma M. Ogle, Judge
                                            Cornelia A. Clark, Special Judge




                                        7
