        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                April 17, 2013 Session

               STATE OF TENNESSEE v. MICHAEL J. FRYAR

                 Appeal from the Criminal Court for Sumner County
                      No. 758-2011     Dee David Gay, Judge




                   No. M2012-01544-CCA-R3-CD Filed 06/07/2013


The defendant, Michael J. Fryar, appeals a certified question of law from the Sumner County
Criminal Court, where he pleaded guilty to aggravated burglary. Because the prosecution
of the aggravated burglary charge began before the expiration of the applicable statute of
limitations, we affirm the judgment of the trial court.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Russell Edwards, Hendersonville, Tennessee, for the appellant, Michael J. Fryar.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General; and Bryna Grant, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               On August 9, 2002, arrest warrants issued charging the defendant with
aggravated burglary and theft of property valued at less than $500. The defendant was not
arrested until July 2011, and, in September 2011, the Sumner County Grand Jury returned
a three-count indictment charging the defendant with one count of aggravated burglary and
two counts of theft of property valued at less than $500. The defendant sought dismissal of
all the charges on grounds that they were barred by the applicable statutes of limitations.
Specifically, he argued that the misdemeanor theft charges were barred because the arrest
warrants were not executed within the five-year time limit provided by Code section 40-6-
206, see T.C.A. § 40-6-206 (“In a misdemeanor case, if a process, warrant, precept or
summons has not been served, returned or quashed within five (5) years from the date of its
issuance, the process, warrant, precept or summons shall be automatically terminated and
removed from the records.”), and that the aggravated burglary charge was time-barred
because, although the arrest warrant was issued within the applicable statute of limitations,
the warrant was void because the court clerk who signed the warrant “was not capable of
making a probable cause determination.”

               The court held a hearing on January 27, 2012, to hear argument on the issues
and testimony from Sumner County General Sessions Court Deputy Clerk Sindy Jones
Moore. Ms. Moore testified that she began work as a deputy clerk in 1999 and that she
signed the warrant for the defendant’s arrest on August 9, 2002. She said that she signed the
warrant after the affiant, a police officer, “swore to [her] that this information was true and
correct” and after she concluded that “he had all the proper information included in the
warrant.”

              Ms. Moore explained that, before they are permitted to sign arrest warrants,
deputy clerks “take extensive time to be trained by . . . superior Clerks in the Court” and that
“[t]hat’s what was done in this case.” She said that they “learn by observing and knowing
what we’re supposed to look for and what we’re not” when issuing warrants. She
acknowledged that she had never received training from a person with a law degree. She
also admitted that she did not know the legal definition of probable cause, but she explained,
“I know that it means that you need enough cause; you need enough evidence written in the
warrant to back up why you are charging that person.” She said that she “read the warrant,
and based on common sense and information included in the warrant, there was enough
probable cause based on what that officer wrote” to issue the warrant.

               During cross-examination by the State, Ms. Moore testified that she trained on
the job for “a long time” before she was permitted to issue warrants. She also said that she
was trained to seek assistance from a supervisor or the district attorney if she had any
question about whether there was probable cause to issue the warrant.

               On February 8, 2012, the trial court issued an order dismissing the
misdemeanor theft charges on grounds that the warrant had expired before it was executed.
With regard to the aggravated burglary, however, the court concluded that Ms. Moore “had
training and experience that gave her enough competence to make a probable cause
determination” and refused to dismiss that charge. On April 5, 2012, the defendant entered
a plea of guilty to the remaining charge of aggravated burglary.

             On April 27, 2012, prior to the entry of the judgment in this case, the trial court
entered an order reflecting that the defendant had entered “a conditional plea which

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specifically reserves a certified question of law for appellate review pursuant to Rules
11(a)(3) and 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure.” The order
provided that the parties and the court agreed that the question, “[w]hether count two of the
indictment should be dismissed as being time-barred pursuant to the applicable statute of
limitations,” was dispositive of the case. Although the reserved issue could have been more
narrowly drawn, we discern that the question was properly framed and reserved pursuant to
Tennessee Rule of Criminal Procedure 37(b), and we examine the defendant’s claim.

             A prosecution for aggravated burglary, a Class C felony, see T.C.A. § 39-13-
402(b), must commence within four years of the date of the offense, see id. § 40-20-
101(b)(3). Code section 40-20-104 provides:

              A prosecution is commenced, within the meaning of this
              chapter, by finding an indictment or presentment, the issuing of
              a warrant, the issuing of a juvenile petition alleging a delinquent
              act, 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.

Id. § 40-2-104.

              Here, an arrest warrant issued on August 9, 2002, alleging that the defendant
had committed the offense of aggravated burglary on April 3, 2002. The defendant contends,
however, that the warrant was void ab initio because the court clerk who signed the warrant
was not qualified to make a probable cause determination.

               Before an arrest warrant can be issued, an affidavit of complaint alleging “the
essential facts constituting the offense charged” must be made “in writing” and presented to
“a magistrate or a neutral and detached court clerk authorized by Rule 4 to make a probable
cause determination.” Tenn. R. Crim. P. 3. “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 . . . .” Tenn. R. Crim. P. 4. Code section 40-6-214 gives the “[c]lerks of
courts of general sessions and their duly sworn deputies” the “jurisdiction and authority,
concurrent with that of the judges of the general sessions court, to issue warrants for the
arrest of persons.” T.C.A. § 40-6-214. Only those clerks who are “‘neutral and detached
and capable of making a probable cause determination,’” however, may issue arrest warrants

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under the terms of Rule 4. State v. Ferrante, 269 S.W.3d 908, 913 (Tenn. 2008) (quoting
Tenn. R. Crim. P. 4, Advisory Comm’n Comments). Thus, “a warrant may issue only upon
an affidavit of complaint and a finding of probable cause by a person capable of making that
determination.” Ferrante, 269 S.W.3d at 913.

                In Ferrante, the State conceded that the clerk who had signed Ferrante’s arrest
warrant “was not capable of making a probable cause determination,” id. at 910, and the
supreme court accepted “the State’s concession on the basis of [the clerk’s] sworn statements
that, as of the time she signed the affidavit of complaint, she had no legal training regarding
making a determination of probable cause and did not know or understand the legal
definition of probable cause,” id. at 910 n. 2 (internal quotation marks omitted). In this case,
however, Ms. Moore acknowledged that she had no legal training but stated that she
underwent on-the-job training for “a long time” before she was permitted to issue warrants.
Although she could not recite the legal definition of probable cause, Ms. Moore evinced a
common sense understanding of probable cause and a clear understanding of her duty with
regard to issuing the warrant. She testified that she understood probable cause to mean that
“you need enough evidence written in the warrant to back up why you are charging that
person” and that she “read the warrant, and based on common sense and information
included in the warrant,” determined that “there was enough probable cause based on what
that officer wrote” to issue the warrant.

               In our view, Ms. Moore’s testimony established her as a “neutral and detached”
person who was “capable of making a probable cause determination.” Consequently, the
arrest warrant issued on August 9, 2002, was valid, and that warrant, issued within the four-
year statute of limitations, commenced the prosecution in this case in a timely fashion.

              Accordingly, the judgment of the trial court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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