        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 May 17, 2016 Session

         STATE OF TENNESSEE v. JANICE DARLENE HELBERT

                Appeal from the Criminal Court for Sullivan County
                      No. S64168 James F. Goodwin, Judge
                     ___________________________________

                No. E2015-02017-CCA-R9-CD – Filed March 10, 2017
                      ___________________________________

Defendant, Janice Darlene Helbert, was issued a Uniform Citation of Complaint for the
offenses of driving under the influence and following too closely. The citation included
the officer‟s narrative of the facts underlying the offenses. The officer also prepared an
affidavit of complaint, which he signed under oath before a notary public. Three days
later, the affidavit of complaint was signed by a deputy clerk. Over one year later,
Defendant waived her right to a preliminary hearing and agreed to have her case bound
over to the grand jury. The grand jury subsequently returned a presentment against
Defendant for the misdemeanor offenses above, as well as one count of felony reckless
endangerment. Subsequent to the presentment, Defendant filed a motion to dismiss the
two misdemeanor counts as time barred, arguing that the affidavit of complaint was void
because the officer did not make the oath in the presence of an authorized official capable
of making a probable cause determination. The trial court granted Defendant‟s motion to
dismiss the misdemeanor charges. The State sought and was granted an interlocutory
appeal of the trial court‟s decision. On appeal, the State contends that the fact that the
affidavit of complaint was sworn before a notary public rather than a qualified judicial
officer was a “technical defect” that should not render it void. Following our review, we
affirm the judgment of the trial court.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Barry Staubus, District Attorney General; and Ben Rowe, Assistant
District Attorney General, for the appellant, State of Tennessee.

Stephen M. Wallace, District Public Defender; and Steven D. Bagby, Assistant Public
Defender, Blountville, Tennessee, for the appellee, Janice Darlene Helbert.
                                       OPINION

Factual background

        On August 2, 2013, Officer Dustin Jackson of the Kingsport Police Department
responded to a collision in which Defendant was involved. Defendant‟s vehicle hit the
vehicle she was following, and Defendant was injured. A citation to Defendant for
driving under the influence and for following another vehicle too closely was issued. On
the same day, Officer Jackson prepared a written affidavit of complaint, which he signed
under oath before a notary public. The affidavit summarizes the facts underlying the
offenses. On August 5, 2013, a Sullivan County clerk determined that there was probable
cause for Defendant‟s arrest for the charges of driving under the influence and following
too closely. The clerk indicated on the affidavit of complaint that Defendant was “given
[a] citation or arrested without warrant” and circled the word “citation.” The clerk did
not specify on the affidavit of complaint that an arrest warrant be issued, and no arrest
warrant or criminal summons appears in the record on appeal.

       On September 9, 2014, with the assistance of counsel, Defendant waived a
preliminary hearing and agreed to have her case bound over to the Sullivan County Grand
Jury. On January 21, 2015, the grand jury returned a presentment for felony reckless
endangerment, following too closely, and driving under the influence. On June 10, 2015,
Defendant filed a motion to dismiss the two misdemeanor counts as time barred. She
argued that the affidavit of complaint did not comply with Rule 3 of the Tennessee Rules
of Criminal Procedure because the officer did not make it under oath in the presence of
an authorized official capable of making a probable cause determination.

        The State responded, conceding that the officer did not appear in the presence of
the clerk who made the probable cause determination, but the State argued that it did not
render the affidavit of complaint or any resulting arrest warrant void. The State also
asserted that Defendant waived any challenge to the affidavit of complaint by failing to
raise the issue in general sessions court.

       On August 13, 2015, the trial court heard argument on Defendant‟s motion. The
parties stipulated that the deputy clerk who reviewed and signed the affidavit of
complaint was “capable of making a probable cause determination.” The State also
stipulated that “the finding of probable cause by [the deputy clerk] did not take place in
the presence of Officer Jackson . . . .” In a written order granting Defendant‟s motion to
dismiss the two misdemeanor charges, the trial court found that “the officer swore to the
affidavit of complaint before a notary public, not a magistrate or neutral and detached
court clerk. Because there was no properly sworn statement upon which to base a
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probable cause determination, the arrest warrants at issue were never valid.” The court
concluded that “the prosecution was not commenced within the time allowed by the
statute of limitations and that the prosecution is barred.” The trial court subsequently
granted the State‟s request for an interlocutory appeal to this court.

Analysis

       The State contends that the trial court erred by concluding that the affidavit of
complaint and/or resulting arrest warrant were void. The State argues that the lack of the
officer‟s physical presence for a sworn examination by the deputy clerk who made the
probable cause determination had no impact on the reliability or adequacy of the
notarized affidavit. There is no arrest warrant contained in the record on appeal.

      Tennessee Code Annotated section 40-6-201 defines what constitutes an arrest
warrant:

      A warrant of arrest is
            (1) A written order;
            (2) The written order
                   (a) states the substance of the complaint;
                   (b) is directed to a proper officer;
                   (c) is signed by a magistrate; and
                   (d) commands the arrest of the defendant.

      Tennessee Rule of Criminal Procedure 4(a) provides as follows:

        If the affidavit of complaint and any supporting affidavits filed with it
        establish that there is probable cause to believe that an offense has been
        committed and that the defendant has committed it, the magistrate or
        clerk shall issue an arrest warrant to an officer authorized by law to
        execute it or shall issue a criminal summons for the appearance of the
        defendant.

(Emphasis added).

      Rule 4 further provides the following:
       The arrest warrant shall:
       (A) be signed by the magistrate or clerk;
       (B) contain the name of the defendant or, if this name is unknown, any
       name or description by which the defendant can be identified with
       reasonable certainty;
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        (C) indicate the county in which the warrant is issued;
        (D) describe the offense charged in the affidavit of complaint;
        (E) order that the defendant be arrested and brought before the nearest
        appropriate magistrate in the county of arrest.

Tenn. R. Crim. P. 4(c) (emphasis added).

       The Advisory Commission Comment to Rule 4 notes “that the affidavit of
complaint may be buttressed by additional affidavit(s) and that the magistrate or clerk
may also examine under oath the complainant and any other witnesses.” In addressing
the issuance of an arrest warrant when the defendant has already been arrested without a
warrant, the Advisory Commission Comment to Rule 4 states as follows:

        The form of the arrest warrant, as set out in Rule 4(c)(1), makes no
        distinction between warrants issued for persons not yet arrested and
        those warrants issued for persons already arrested without a warrant.
        Such a warrant serves a dual function: first, as the authority for an arrest
        (where an arrest has not already been lawfully made) and, secondly, as a
        statement of the charge which the accused is called to answer. The
        commission did not recommend two separate warrant forms, one for use
        where the accused had not yet been arrested, and the second to merely
        state the charge against one already under arrested, because it is more
        utilitarian to have only the one form. The command to arrest is obviously
        surplusage where the warrant is directed against one already in custody;
        but a warrant in such cases still serves as the official charging
        instrument, issued after a judicial finding of probable cause, and gives
        notice of the charge which must be answered.

(Emphasis added).

        The trial court‟s decision on Defendant‟s motion to dismiss was based upon an
application of law to facts that were not in dispute. Because the issue presented for our
review is one of law, we review it de novo with no presumption of correctness given to
the trial court‟s conclusions. State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008).

       With some exceptions not applicable here, “all prosecutions for misdemeanors
shall be commenced within twelve (12) months after the offense has been committed[.]”
Tenn. Code Ann. § 40-2-102. The purpose of the limitations period “is to protect a
defendant against delay and the use of stale evidence and to provide an incentive for
efficient prosecutorial action in criminal cases.” State v. McCloud, 310 S.W.3d 851, 859
(Tenn. Crim. App. 2009) (citing State v. Nielsen, 44 S.W.3d 496, 499 (Tenn. 2001)).
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Furthermore, “[s]tatutes of limitations are construed „liberally in favor of the criminally
accused.‟” Id. (citing and quoting State v. Ferrante, 269 S.W.3d 908, 911 (Tenn. 2008)).

        In order to determine whether the prosecution is barred by the statute of
limitations, we must first determine when the prosecution was commenced.

        A prosecution is commenced, within the meaning of this chapter, by
        finding an indictment or presentment, the issuing of a warrant, binding
        over the offender, by the filing of an information as provided for in
        chapter 3 of this title, or by making an appearance in person or through
        counsel in general sessions or any municipal court for the purpose of
        continuing the matter or any other appearance in either court for any
        purpose involving the offense.

Tenn. Code Ann. § 40-2-104; see also Ferrante, 269 S.W.3d at 912.

       In this case, the misdemeanor offenses occurred on August 2, 2013. There is no
arrest warrant in the record. Defendant waived her right to a preliminary hearing in
general sessions court on September 9, 2014. The grand jury returned a presentment on
January 21, 2015. These events occurred more than one year after the date of the
offenses. Accordingly, they fall outside the one-year statute of limitations for
misdemeanor offenses.

       The State recognizes that no arrest warrant appears in the record and contends that
the affidavit of complaint commenced the prosecution in this case. In State v. Steven
Shell, No. E2015-01103-CCA-R3-CD, 2016 WL 3679840, at *1 (Tenn. Crim. App., June
29, 2016), the parties agreed that the affidavit of complaint was sworn before a notary
public and subsequently signed by a clerk authorized to make a probable cause
determination. In that case, a panel of this court held that the clerk‟s probable cause
finding did not transform the affidavit of complaint into an arrest warrant sufficient to
commence the prosecution. The panel further held that the affidavit of complaint was
invalid because it failed to comply with the requirements of Tennessee Code Annotated
section 40-6-203 and Rule 3 of the Tennessee Rules of Criminal Procedure.

      Code section 40-6-203(a) provides, in pertinent part, as follows:

        (a) Upon information made to any magistrate of the commission of a
        public offense, the magistrate shall examine on oath, the affiant or
        affiants, reduce the examination to writing, and cause the examination to
        be signed by the person making it.

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        (b)(1) The examination of the affiant or affiants by the magistrate or
        lawfully authorized court clerk does not have to take place in a face-to-
        face meeting of the parties but may be conducted through the use of
        electronic audio-visual equipment which allows the affiant and the
        examining official to both view and hear each other simultaneously.

T.C.A. § 40-6-203(a)-(b). Rule 3 of the Tennessee Rules of Criminal Procedure
mandates that an affidavit of complaint “be made on oath before a magistrate or a neutral
and detached court clerk authorized by Rule 4 to make a probable cause determination.”
Tenn. R. Crim. P. 3(b). These provisions clearly contemplate that the affidavit of
complaint will be made by the affiant to the magistrate making the probable cause
determination at the time of the probable cause determination, either in person or via
electronic equipment. These rules are mandatory, and the failure to comply with them
invalidates the affidavit of complaint and resulting warrant. See Ferrante, 269 S.W.3d at
913.

       A panel of this court recently held that the signing of an affidavit of complaint
before a notary public rather than a qualified judicial officer does not satisfy the
applicable procedural requirements. State v. Felicia Jones, No. E2015-01101-CCA-R3-
CD, 2016 WL 3750151, at *5 (Tenn. Crim. App., June 29, 2016). In that case, no arrest
warrant was issued pursuant to the affidavit of complaint. The panel held that the form
affidavit of complaint did not conform to the requirements of an arrest warrant because it
did not contain an “order that the defendant be arrested and brought before the nearest
appropriate magistrate in the county of arrest.” Tenn. R. Crim. P. 4(c)(1)(E).
Accordingly, the State failed to commence prosecution against Defendant within the
applicable one-year statute of limitations in that case. See id. at *7-8.

       We agree with the analysis expressed by the panel in Felicia Jones that the signing
of the affidavit of complaint “before a notary public rather than a qualified judicial officer
did not meet the requirements of [Code] section 40-6-203(a) and Rule 3” and that this
defect rendered the affidavit of complaint invalid. Felicia Jones, 2016 WL 3750151.

       The State also contends that Defendant‟s appearance in general sessions court was
sufficient to commence the prosecution because it provided her notice of the charges
against her. A prosecution may be commenced by the defendant‟s appearance in court if
the underlying affidavit of complaint is valid. McCloud, 310 S.W.3d at 861 (citing
Ferrante, 269 S.W.3d at 914-15). In Ferrante, our supreme court held that “a
defendant‟s court appearance may serve to commence a prosecution under section 40-2-
104 so as to toll the statute of limitations only where that appearance is made in response
to an offense that has been charged.” 269 S.W.3d at 915. When an affidavit of
complaint is void, a defendant “has not been charged with any offense[;]” therefore, her
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appearance in general sessions court would “not serve as a commencement of the
prosecution for purposes of tolling the statute of limitations.” Id. Moreover, there is no
evidence in the record to indicate that Defendant did, in fact, make any court appearance
prior to September 9, 2014, when she waived her right to a preliminary hearing, more
than one year after the commission of the offenses.

       We conclude that the State did not commence its prosecution against Defendant
until after the one-year limitations period had expired. Accordingly, the trial court
properly dismissed counts two and three of the presentment.

                                    CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgment of
the trial court is affirmed.

                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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