         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 February 10, 2009 Session

              STATE OF TENNESSEE v. RICKEY E. HUTCHINGS

                    Appeal from the Circuit Court for Williamson County
                          No. I-594-137    Robbie T. Beal, Judge



                     No. M2008-00814-CCA-R3-CD - Filed June 16, 2009


The Defendant, Rickey E. Hutchings, appeals as of right from the Williamson County Circuit
Court’s revocation of his 1994 probationary sentence for possession of contraband in a penal
institution. On June 22, 1998, a warrant was issued against the Defendant, alleging a violation of
probation based upon the Defendant’s arrest in Gulfport, Mississippi for possession of approximately
one hundred pounds of marijuana with the intent to sell. The warrant was not served on the
Defendant until November 27, 2007, and was thereafter amended to include additional criminal
behavior. On appeal, the Defendant argues that the delay between the issuance of the probation
violation warrant and his revocation hearing violated his right to a speedy revocation hearing and,
therefore, that the trial court erred by denying his motion to dismiss the warrants. Because the
Defendant was denied the right to a speedy probation revocation hearing, the judgment of the trial
court is reversed, and the warrants against the Defendant are dismissed.


Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Probation
                              Violation Warrants Dismissed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

F. Shayne Brasfield, Franklin, Tennessee, for the appellant, Rickey E. Hutchings.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
Kim R. Helper, District Attorney General; and Derek K. Smith, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                                    OPINION

                                        Factual Background
       This case has a rather complicated procedural history that we will set out in detail. On
August 8, 1994, in the Williamson County Circuit Court, the Defendant pleaded guilty to possession
of contraband in a penal institution, a Class C felony. See Tenn. Code Ann. § 39-16-201.
Thereafter, the trial court imposed a sentence of eight years in the Department of Correction; this
sentence was suspended, and the Defendant was placed on ten years of intensive probation. The
probation order reflects that the probationary period began on October 31, 1994, and was to end on
October 31, 2004. Judgment was entered against the Defendant on November 11, 1994. After
successfully completing ten months of intensive probation, the Defendant was transferred to regular
probation.

         On June 17, 1998, the Defendant was arrested in Gulfport, Mississippi on a federal charge
for possession of approximately one hundred pounds of marijuana with the intent to sell. As a result
of his arrest in Mississippi, a revocation warrant was issued in Williamson County on June 22, 1998.
The Defendant was convicted of the federal charge. Phone records indicate that, while the Defendant
was incarcerated in Mississippi on the conviction, his attorney spoke with Assistant District Attorney
General Derek Smith1 on January 22, 1999, and June 23, 1999. Just two days after the June 23, 1999
phone call, on June 25, the Defendant was placed on federal probation, which included random drug
testing, outpatient substance abuse counseling, and payment of a $1,000 fine. According to phone
records, on June 29, 1999, following the Defendant’s release from federal custody and placement
on federal probation, the Defendant’s attorney talked with Sandra Rutland2 “re: reporting to
probation in TN,” and he also had a phone conference with Sandra Rutland and Agent Joey Kimble
of the Tennessee Drug Task Force. Phone records reflect another phone call by the Defendant’s
attorney on July 1, 1999, showing a discussion with the Defendant and his probation officer in
Tennessee and a phone call to the “US Attorney and Agent.” Later in July 1999, the Defendant met
with Agent Kimble in Tennessee; however, the Defendant was not served with the outstanding
warrant at this time. The Defendant successfully completed his federal probationary period and was
released from probation on June 24, 2002.

        In 2005, the Defendant was arrested in Putnam and White Counties in Tennessee. He was
convicted in White County for aggravated assault on August 22, 2006, and in Putnam County for
theft over $1,000 on December 19, 2006. Under the terms of the plea agreement, he received three
years of probation for these offenses. Thereafter, the Defendant was arrested on October 24, 2007,
in Jones County, Georgia for possession of burglary tools and theft. He was extradited to Tennessee
for the pending warrant charging him with violation of probation for the possession of contraband
in a penal institution conviction.



       1
           W e note that Mr. Smith is also the prosecutor in the present proceedings.

       2
           It is unclear from the record who Sandra Rutland is and what her role was in the Defendant’s case.

                                                         -2-
         The June 22, 1998 violation warrant was finally served on the Defendant on November 27,
2007. The warrant was then amended to include the Defendant’s convictions in Putnam and White
Counties and his Georgia arrest. On December 11, 2007, the Defendant appeared in court and was
served with the amended violation warrant, at which time the parties agreed to continue the matter
until a later date.

        The Defendant filed a motion to dismiss on February 14, 2008, on the basis that the lengthy
delay between the issuance and service of the warrant violated his constitutional right to a speedy
probation revocation hearing. At the request of the defense due to the fact that the Defendant was
in court in Putnam County, the parties agreed to a continue the matter again from February 19, 2008,
to March 31, 2008. Following a hearing on the motion to dismiss on March 31, the trial court denied
the motion, and the hearing on the probation violation was continued.

        At the April 3, 2008 revocation hearing, the Defendant, while not admitting to the violation,
stipulated to the facts contained in the warrants. He requested, however, that the court consider the
time delay in serving the warrant and his current health issues.

        The Defendant testified that he served one year and one week in federal custody on the
Mississippi drug conviction. He stated that this was a reduced sentence due to the fact that he had
assisted authorities with catching a “king pin[]” who had skipped out on his bond.

       When asked if he was informed of any warrants or holds following his release from federal
custody, the Defendant testified that there had been multiple conversations between his attorney and
law enforcement officials, particularly Agent Joey Kimble in Tennessee, where he “could do some
more cooperation work along those lines[.]” He was told to report to Agent Kimble when he
returned to Tennessee. Upon his return, the Defendant located Agent Kimble and signed a
“confidential informant contract” with him, for a period lasting ten years, and he was not to inform
anyone of his confidential informant status. The Defendant stated that, at some point in time, at the
request of Agent Kimble and Customs Officer Randy Walsh, he gathered some information about
alleged criminal dealings and relayed this information to them; however, they never responded to
him. The Defendant produced an old card with a pager number for Agent Kimble on it.

         Following his incarceration in Mississippi, the Defendant returned to his home in Sparta,
Tennessee, where he had lived for thirty years. He reported to a federal probation office in
Cookeville; his probation officer was Burton Putnam. When asked if he reported to state probation
at that time, the Defendant replied that he informed Mr. Putnam he was also on state probation but
believed that his federal and state probation “were run together sort of hit—you know, hand in hand
tied at the hip at that particular point.” Moreover, according to the Defendant, Mr. Putnam explained
to him that he checked NCIC every six months and that, if there were outstanding warrants for the
Defendant, then they would be aware of that information. When he successfully completed
probation with Mr. Putnam, the Defendant asked if he had any other obligations, and Mr. Putnam,
replied, “No. . . . You know, from what I see with my records and my checks, . . . you’re free to go,
. . . you’re a free man, you can continue to travel as you have in the past.”


                                                -3-
         The Defendant affirmed that he was arrested in Putnam and White Counties in 2005, that he
pleaded guilty to these charges, and that he was placed on state probation as a result. The Defendant
testified that he only served a few days in jail on these offenses and that he reported to his probation
officer as directed. According to the Defendant, he had three different probation officers while on
state probation. The first probation officer made him fill out forms documenting his criminal history,
and he included his Williamson County conviction. At all times, he reported to the same probation
office, which also was the same office he reported to when he was on probation out of Williamson
County. According to the Defendant, no probation officer ever informed him of any outstanding
warrants; the Defendant believed that he did not have “anything still out there.”

         The Defendant testified that he was pulled over in Georgia on a routine traffic stop in October
2007. Ultimately, the police searched the vehicle and discovered the Defendant’s “work tools” in
it; he “did some contracting.” The police ran an NCIC check on him and found a hold on him. He
was arrested and taken to jail. According to the Defendant, Georgia officials said that “this doesn’t
quite play out the way . . . we thought it did” seeing that it was the Defendant’s work truck, that the
Defendant should sign extradition papers back to Tennessee, and that Georgia officials were “going
to forget about this . . . .” It was then he learned that the hold was due to the conviction out of
Williamson County. The Defendant believed the Georgia charges had been dropped.

        The Defendant then described his myriad of medical problems: testicular cancer requiring
him to undergo radiation treatments, Hepatitis C requiring him to take Interferon, cirrhosis of the
liver, post-traumatic stress disorder, and diabetes. The Defendant introduced a letter from his doctor
at the Veterans Administration (VA) Hospital, wherein the doctor listed the Defendant’s numerous
medical issues and concluded that the Defendant “has complex medical and psychiatric issues that
would be best managed if he was not incarcerated.” He testified that he had medical coverage with
the VA and that, if he was incarcerated, then he and his family would lose his VA benefits. He was
unsure what would happen with his TennCare coverage.

        Additionally, the Defendant testified that he was the primary caretaker for his very ill mother.
He testified that his wife, his seven-year-old daughter, and one of his eighteen-year-old twin boys
lived with him.

        On cross-examination, the Defendant acknowledged that he was a persistent offender at the
time he was sentenced on the possession of contraband in penal institution conviction. He conceded
that his criminal history included convictions for aggravated assault, attempted kidnapping, grand
theft, possession of cocaine, theft over $500, simple assault, simple possession of drugs, assault and
battery, and resisting arrest. The Defendant agreed that he was now a career offender.

       On redirect, the Defendant testified that he had a drug and alcohol problem, for which he saw
an addictionologist monthly. He stated that he went through outpatient treatment and attended
alcoholics and narcotics anonymous (AA and NA) on a regular basis. According to the Defendant,
his family attended AA and NA meetings with him to support him. He claimed he had been “clean”



                                                  -4-
for eleven years before he “had a slip” and that he had now “been clean” again for almost three years.
The trial court noted that the Defendant’s wife had been present throughout the proceedings.

       At the conclusion of the hearing, the trial court revoked the Defendant’s probation and
ordered him to serve the remainder of his eight-year sentence in the Department of Correction. The
revocation order provides as follows:

        [T]he [c]ourt finds it very relevant that following the Defendant’s completion of
        [f]ederal [p]robation in 2002, the Defendant still had another two (2) years of [s]tate
        [p]robation in which he did not report to a probation officer. The court finds that the
        [m]otion was properly filed, but is without merit based upon the Defendant not
        reporting for two (2) years. The [c]ourt finds that the Defendant did not attempt to
        allude or evade and was in essence hiding in plain sight. The [c]ourt further finds
        that a year delay in the serving of the probation violation does not trigger a basis for
        dismissal.

The trial court also gave the Defendant jail “credit for time in federal prison” and “credit for any time
served anywhere.” This appeal followed.

                                              Analysis
       On appeal, the Defendant argues that the trial court abused its discretion in revoking
probation because the proceedings were unnecessarily delayed. He contends that the State has not
been timely in its pursuit of revocation and, therefore, that the trial court should have granted the
motion to dismiss the violation warrants for violation of his right to a speedy hearing.

        A probation revocation proceeding is a continuation of a criminal prosecution and thus falls
within a defendant’s constitutional right to a speedy trial. U.S. CONST . amends. XI, XIV; TENN .
CONST . art. I, § 9; Allen v. State, 505 S.W.2d 715 (Tenn. 1974). A trial court must carefully balance
societal interest in punishing criminals against a defendant’s interest in a speedy trial, because
dismissal of charges is the only available remedy for violation of the right. State v. Bishop, 493
S.W.2d 81, 83 (Tenn. 1973). In Bishop, our Supreme Court adopted factors articulated by the United
States Supreme Court as the relevant analytical framework for alleged violations of the right to a
speedy trial:

                (1) The length of the delay;
                (2) the reason for that delay;
                (3) the defendant’s assertion to his right to speedy trial; and
                (4) the prejudice to the defendant.

Id. at 83-84 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).

       In Bishop, the delay occurred after arrest and arraignment of the defendant, see id. at 82-83,
in contrast to the instant interval between issuance of the probation violation warrant and the


                                                  -5-
revocation hearing. Our Supreme Court has expressly held that “a probation revocation proceeding
is a continuation of the criminal prosecution,” meriting consideration of the enumerated
constitutional safeguards. Allen, 505 S.W.2d at 719. Although the Allen analysis did not explicitly
apply the Bishop factors, a panel of our Court in Blackwell v. State, 546 S.W.2d 828, 830 (Tenn.
Crim. App. 1976), applied them in a subsequent analysis of a delay of a probation revocation
hearing.

        We apply those factors in the instant case. The question of whether the right to a speedy trial
has been denied is a mixed question of law and fact and, therefore, subject to de novo review. See
State v. Hawk, 170 S.W.3d 547, 549 (Tenn. 2005).

I. Length of delay
       After the probation violation warrant was issued on June 22, 1998, eight years and five
months passed before the warrant was served on the Defendant. Ultimately, on March 31, 2008, a
hearing was held on the motion to dismiss, and the revocation hearing occurred on April 3, 2008.
Any delay approaching one year generally triggers further inquiry into the remaining three factors.
See State v. Utley, 956 S.W.2d 489, 494 (Tenn. 1997).

        The State cites to State v. Timothy Tillery, No. E2000-01996-CCA-R3-CD, 2001 WL
921754, (Tenn. Crim. App., Knoxville, Aug.16, 2001), for the proposition that the Defendant’s right
to a speedy trial was not implicated until the warrant was actually served on November 27, 2007.
Because the delay between his arrest and revocation hearing did not approach one year, further
analysis on the remaining factors would be unnecessary if we credit this argument. First we note that
Tillery’s precedential value is diminished due to the fact Judge Tipton wrote a separate concurring
opinion3 and Judge Witt concurred in results only.

        The Tillery opinion relied on Utley, 956 S.W.2d 489, in support of its conclusion that a
defendant’s right to a speedy probation revocation hearing is not triggered until the defendant is
arrested on the probation violation warrant:

         [I]n Utley, 956 S.W.2d 489, a case which post-dates Allen by twenty-three years, our
         supreme court explicitly held “that the issuance of an arrest warrant alone does not
         trigger a speedy trial analysis and that the right to a speedy trial is not implicated until
         there is an arrest or a formal grand jury accusation.” 956 S.W.2d at 491. Because
         there is no formal grand jury accusation in a probation revocation proceeding, it
         would appear that an actual arrest for the probation violation would be the triggering
         factor for a speedy trial right.


         3
            Judge Tipton disagreed with the opinion’s analysis and concluded that the defendant’s speedy trial right was
triggered when the detainer from Blount County was lodged with the Department of Correction. Tillery, 2001 W L
921754, at *6 (Tipton, J., concurring). The trial court in this case also took a different view, finding that the Defendant’s
speedy trial right began when he was placed on state probation again in August 2006 and the warrant was not discovered
at that time.

                                                            -6-
Tillery, 2001 WL 921754, at *2.

       We first note that in Utley, the issue presented did not involve a speedy hearing on a
probation violation warrant. The issue in Utley involved a speedy trial on original criminal charges.
We decline to adopt the rationale of Tillery and instead conclude that Allen is still the prevailing law
under the circumstances presented herein. In Allen, a delay of two years and eight months between
issuance of a revocation warrant and the revocation hearing merited consideration under the
defendant’s right to a speedy trial. See Allen, 505 S.W.2d 715. The defendant in Allen was not
served with the probation violation warrant until the day of the probation revocation hearing. He had
been incarcerated on other charges, and no action was taken regarding the probation violation
warrant until the defendant inquired about it. Id. at 716.

        This issue was squarely addressed in Allen, and we decline to extend Utley to probation
revocation proceedings in the context of when a defendant’s speedy trial right is triggered. It is
precisely because there is no formal grand jury accusation in probation revocation proceedings, as
opposed to a criminal charge, that we will not extrapolate the rationale from Utley to the present
situation. Probation revocation proceedings are commenced when the trial judge issues the warrant;
the warrant serves as the formal accusation. See Tenn. Code Ann. § 40-35-311(a). No further action
is required.4 In our view, the issuance of the warrant is the triggering mechanism.

       Additionally, in Tillery, it was noted that recent cases of this Court cited Allen for the
proposition that a lengthy delay between the issuance of a probation violation warrant and the
hearing on the probation revocation may violate a defendant’s right to a speedy trial. Tillery, 2001
WL 921754, at *2 n.6 (citing State v. Randy R. Wilson, No. M2000-01537-CCA-R3-CD, 2001 WL
523368, at *2 (Tenn. Crim. App., Nashville, May 16, 2001); State v. Lawrence Ralph, Jr., No.
M1999-01635-CCA-R3-CD, 2000 WL 775592, at *1-2 (Tenn. Crim. App., Nashville, June 16,
2000)). We find this to be the prevailing view after the Tillery decision as well. See State v. Mathis
Lamar Meadows, No. W2006-02534-CCA-R3-CD, 2007 WL 1215050, at *2-3 (Tenn. Crim. App.,
Jackson, Apr. 24, 2007); State v. John William Matkin, III, No. E2005-02701-CCA-R3-CD, 2007
WL 120048, at *5 (Tenn. Crim. App., Knoxville, Jan. 18, 2007); State v. Markettus L. Broyld, No.
M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1-2 (Tenn. Crim. App., Nashville, Dec. 27,
2005).

      It follows, then, that the almost nine-year delay between the issuance of the warrant and the
Defendant’s probation revocation hearing is “presumptively prejudicial.” See Barker, 407 U.S. at
530. The length of the delay, therefore, requires us to inquire into the remaining factors.

II. Reasons for the Delay
        In State v. Wood, 924 S.W.2d 342 (Tenn. 1996), the Tennessee Supreme Court identified
several possible reasons for delay:


         4
           Once a defendant is brought into custody on the warrant, the trial judge shall inquire into the allegation of
a probation violation “at the earliest practicable time.” See Tenn. Code Ann. § 40-35-311(b).

                                                          -7-
               (1) Intentional delay for the purpose of tactical advantage over the defense or
       to harass the defendant;
               (2) bureaucratic indifference or negligence;
               (3) delay necessary to the fair and effective prosecution of the case; and
               (4) delay acquiesced in or caused by the defendant.

924 S.W.2d at 346-47. Factors (1) and (2) are weighed, heavily and somewhat less heavily,
respectively, against the state. Id. at 346-47. Factor (3) is weighed against neither party, and factor
(4) is weighed against the defendant. Id. at 347.

         Here, the delay appears to be attributable to bureaucratic indifference or negligence. “Delays
between indictment and trial which are occasioned . . . by the prosecuting attorney . . . must be
considered the responsibility of the State.” State v. Kolb, 755 S.W.2d 472, 474 (Tenn. Crim. App.
1988) (citations omitted). The State neglects to point out that a “hold” could have been placed upon
the Defendant during the time he was in federal custody if the State intended to pursue the allegation
of a probation violation following his release. In fact, defense counsel conversed with the Tennessee
district attorney general’s office while the Defendant was incarcerated; their last conversation
occurred just two days before the Defendant’s release from jail. After his incarceration in
Mississippi, the Defendant returned to his home in Sparta, Tennessee, where he had lived for thirty
years. He reported to federal authorities and apparently worked as a confidential informant for the
Tennessee Drug Task Force. The Defendant testified that, based on the information he had received,
he believed that his federal and state probation “were run together sort of hit—you know, hand in
hand tied at the hip at that particular point.” Also, according to the Defendant he asked his federal
probation officer Burton Putnam if he had any other obligations after successfully completing his
probation in 2002, and Mr. Putnam replied, “No. . . . You know, from what I see with my records
and my checks, . . . you’re free to go, . . . you’re a free man, you can continue to travel as you have
in the past.” Furthermore, following his convictions in White and Putnam Counties, the Defendant
was again placed on state probation, and the warrant went undiscovered by the State. The State
offered no valid reason for the delay.

        The inordinate delay between June 22, 1998, and service of the warrant on November 27,
2007, can only be charged to lack of due diligence by the State. The delay in this case was
unnecessary and “the product of bureaucratic miscommunication or indifference . . . which,
reasonably speaking, was not unavoidable.” See State v. Matthew Melton Jackson, No.
M2005-01374-CCA-R3-CD, 2006 WL 1896350, at *4 (Tenn. Crim. App., Nashville, July 7, 2006)
(citing Kolb, 755 S.W.2d at 474-75); see also Dickey v. Florida, 398 U.S. 30, 51-52 (1970)
(Brennan, J., concurring). “[S]heer bureaucratic indifference weighs heavily against the
government.” United States v. MacDonald, 632 F.2d 258, 262 (4th Cir.1980). Due to the degree
of negligence involved in this case, this factor must be assigned considerable weight. See State v.
Monty Earl Picklesimer, No. M2003-03087-CCA-R3-CD, 2004 WL 2683743, at *4 (Tenn. Crim.
App., Nashville, Nov. 24, 2004).




                                                 -8-
III. The Defendant’s Demand for Speedy Trial
         A defendant must seek a swift trial by timely asserting that right.5 Both the Tennessee and
United States Supreme Courts have recognized that “an accused who is unaware that charges are
pending against him or her, as is often the case where an indictment has been sealed and not served,
cannot be penalized for his or her failure to assert the speedy trial right.” Wood, 924 S.W.2d at 351
n. 13 (citing Doggett v. United States, 505 U.S. 647, 652-54; Wright v. State, 405 S.W.2d 177, 180
(Tenn. 1966)). The Defendant is under no duty to bring himself to trial; the “primary burden, after
all, is on the courts and prosecutors to assure that cases are brought to trial.” Id. at 347; see also
Jackson, 2006 WL 1896350, at *4 . It appears from the record that the Defendant was unaware of
the probation violation warrant until after his October 2007 arrest in Georgia; over eight years and
five months had passed after the warrant’s issuance but before it was served on the Defendant.
Therefore, the Defendant “cannot be penalized for failing to assert his speedy trial right earlier.”
State v. Simmons, 54 S.W.3d 755, 760 (Tenn. 2001). Just two and half months after service of the
warrant, the Defendant filed a motion to dismiss the warrant alleging a violation of his right to a
speedy trial. Once he became aware of the allegation, he timely made a demand for the right.
Therefore, this factor also weighs in favor of dismissal of the warrant.

IV. Prejudice Against the Defendant
        The final and most important factor in the Barker analysis is whether the accused has suffered
prejudice from the delay. 407 U.S. at 532. When evaluating this factor, courts must be aware that
the right to a speedy trial is designed (1) to prevent undue and oppressive incarceration prior to trial,
(2) to minimize anxiety and concern accompanying public accusation, and (3) to limit the
possibilities that long delay will impair the defense. Bishop, 493 S.W.2d at 85; see Smith v. Hooey,
393 U.S. 374, 378 (1969). The Defendant argues that he suffered prejudice by the delay because he
lost the possibility of serving this sentence concurrently with the sentence he served in federal
custody and that the correctional system is not equipped to handle his present medical needs.

        While the prejudice factor is the most important of the factors identified in Barker, courts
must examine the totality of the factors and each and every circumstance relating to those factors in
determining when the defendant has been denied his right to a speedy trial. Picklesimer, 2004 WL
2683743, at *5. In Hooey, 393 U.S. 374, the United States Supreme Court determined that a
“defendant already in prison might receive a sentence at least partially concurrent with the one he
is serving . . . [unless] trial on the pending charge is postponed . . . .” 393 U.S. at 378. In that case,
the Court identified the lost possibility of concurrent sentencing as one harm that could result to an
incarcerated prisoner and said this lost possibility relates to the interest in avoiding undue and
oppressive pretrial incarceration. Simmons, 54 S.W.3d at 755. Similarly, in this case, the Defendant



         5
             At the motion to dismiss hearing, the State argued that the Defendant could not complain about his speedy
trial rights due to the two continuances agreed to and sought by the defense. The trial court did note that both
continuances were “not in any way meant for the purposes of delay.” W e agree with the trial court that valid reasons
existed for both continuances. The motion to dismiss hearing occurred just four months after the Defendant received
the probation violation warrant. The Defendant’s demand for a speedy trial was not negated by the subsequent
continuances.

                                                         -9-
could have addressed the issue of concurrent sentencing or early parole had the State conducted the
prosecution with due diligence.6 See Picklesimer, 2004 WL 2683743, at *5.

        The Defendant was unaware of the allegation until November 2007; the evidence, therefore,
is not particularly compelling as to whether he experienced undue anxiety or concern as a result of
public accusation. There was evidence, however, that the Defendant suffered from numerous
medical conditions which he acquired during the almost nine-year delay and that his treatment could
be compromised if incarcerated. See id. As for the third factor,

         while it was not conclusively established that the defense would have been impaired,
         . . . an adverse effect upon preparations is not essential to the establishment of the
         denial of a right to speedy trial. In Doggett, for example, the Supreme Court
         dismissed the prosecution, finding a delay of over eight years due to the negligence
         of the prosecution to be ‘egregious’ and involving the presumption of prejudice,
         ‘compromis[ing] the reliability of a trial in a ways that neither party can prove or, for
         that matter, identify.’

See Picklesimer, 2004 WL 2683743, at *5 (quoting Doggett, 505 U.S. at 655). Moreover, “the
presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S.
at 655. We find Doggett applicable to facts presented in this case.

       In our view, an examination of the Barker factors establishes that the Defendant has been
denied his right to a speedy probation revocation hearing due to the nine-year delay between the
issuance of the probation violation warrant and the Defendant’s revocation hearing. A dismissal
on grounds of the denial of a speedy trial is warranted.

                                         Conclusion
      Because the Defendant was denied his right to a speedy trial, the judgment of the Williamson
County Circuit Court is reversed. The probation violation warrants are dismissed.


                                                                  ______________________________
                                                                  DAVID H. WELLES, JUDGE




         6
            The trial court in this case, presumably in an attempt to minimize the prejudice to the Defendant, gave the
Defendant credit for time served in federal prison and for time served “anywhere.” As noted by the State in its brief, this
was not permitted by statute. See Tenn. Code Ann. § 40-23-101(c). Moreover, given the length of time that has passed,
the extent of the prejudice is unclear.

                                                          -10-
