        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  May 18, 2010 Session

         STATE OF TENNESSEE v. STEPHEN JAMES THOMPSON

                     Appeal from the Circuit Court for Maury County
                       No. 18362 Allen W. Wallace, Senior Judge



                  No. M2009-02122-CCA-R3-CD - Filed August 25, 2010


The State appeals the trial court’s dismissal of the charge of driving under the influence
(“DUI”) against Appellee, Stephen James Thompson. The trial court dismissed the charge
after finding that the statute of limitations had expired before the Maury County Grand Jury
indicted Appellee. On appeal, we determine that the trial court improperly dismissed the
charges because Appellee waived his preliminary hearing and agreed to allow the case to be
bound over to the grand jury prior to the expiration of the statute of limitations. Therefore,
the judgment of the trial court is reversed and remanded for reinstatement of the indictment
against Appellee for DUI.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed
                                 and Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., J OINED.

Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney
General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee.

J. Russell Parkes and Charles M. Molder, Columbia, Tennessee for the appellee, Stephen
James Thompson.

                                         OPINION

                                    Factual Background

        Appellee was involved in a car accident on September 28, 2007. Appellee was injured
in the accident, so the responding officer, Trooper Jon W. Judge, was unable to perform field
sobriety tests on Appellee even though Trooper Judge suspected that Appellee was driving
under the influence. At the time of the accident, Appellee was charged with failure to give
immediate notice of the accident, leaving the scene of an accident involving injury, driving
on an expired license, failure to provide proof of insurance, and violation of the open
container law.

       On January 28, 2008, Trooper Judge executed an affidavit of complaint against
Appellee alleging that he was driving under the influence at the time of the accident. The
complaint does not appear to have been signed by a judge, magistrate, or Appellee. Appellee
subsequently made four appearances in court on February 7, 2008; March 20, 2008; April 7,
2008; and June 12, 2008, related to the charges stemming from the accident. Appellee was
represented by counsel. Subsequently, on July 24, 2008, Appellee waived his right to a
preliminary hearing and agreed to allow the case to be bound over to the grand jury.

        The Grand Jury of Maury County indicted Appellee on October 3, 2008. On January
6, 2009, Appellee filed a motion for arraignment, waived personal appearance, and requested
that the trial court enter a not guilty plea. Appellant filed a motion to dismiss the DUI charge
due to the running of the statute of limitations on August 25, 2009. The trial court granted
the motion and dismissed the DUI charge on the basis that the statute of limitations expired
prior to the issuance of the indictment.

       The State has appealed.

                                           Analysis

       On appeal, the State argues that the trial court “erred when it concluded that the statute
of limitations had run before the State commenced prosecution.” Specifically, the State
contends that the trial court improperly dismissed the indictment where Appellee waived his
preliminary hearing and agreed to have the case bound over to the grand jury prior to the
expiration of the one-year statute of limitations. Appellee disagrees, relying on State v.
Ferrante, 269 S.W.3d 908, 914 (Tenn. 2008). Appellee argues that the underlying affidavit
of complaint was void ab initio because it was not signed by a clerk, judge, or magistrate and
was never served on Appellee. Therefore, according to Appellee, the State failed to
commence prosecution pursuant to “one of the statutory vehicles found in [Tennessee Code
Annotated section] 40-2-104” and the trial court properly dismissed the indictment.

       DUI is a Class A misdemeanor. See T.C.A. § 55-10-301, -401. According to
Tennessee Code Annotated section 40-2-102, except as otherwise provided, “all prosecutions
for misdemeanors shall be commenced within the twelve (12) months after the offense has
been committed.” The purpose of the statute of limitations is “to protect a defendant against
delay and the use of stale evidence and to provide an incentive for efficient prosecutorial

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action in criminal cases.” State v. Nielsen, 44 S.W.3d 496, 499 (Tenn. 2001). We recognize
that statutes of limitation are generally construed “liberally” in favor of the defendant.
Ferrante, 269 S.W.3d at 911 (citing State v. Henry, 834 S.W.2d 273, 276 (Tenn. 1992)).

       According to Tennessee Code Annotated section 40-2-104:

       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.

The various methods for commencement allow a defendant to be provided “with sufficient
notice of the crime.” State v. Tait, 114 S.W.3d 518, 522 (Tenn. 2003).

        In the case herein, Appellee was not indicted until October of 2008, more than twelve
months after the offense. Thus, we must determine whether another event occurred prior to
the filing of the indictment that was sufficient to commence the prosecution of the case.

        Appellee relies on Ferrante, 269 S.W.3d 908 (Tenn. 2008), to support his assertion
that the trial court appropriately dismissed the indictment. We find Ferrante distinguishable.
In Ferrante, the affidavit of complaint failed to comply with the Tennessee Rules of Criminal
Procedure because a clerk, rather than a magistrate or judge, signed the affidavit. 269
S.W.3d at 910. Further, the defendant in Ferrante was not bound over to the grand jury prior
to the expiration of the statute of limitations. Id. at 911. As a result, the State attempted to
rely on the defendant’s various court appearances as the commencement of the prosecution.
The supreme court determined that a defendant’s appearance in general sessions court will
only mark the commencement of the prosecution where the underlying affidavit of complaint
is valid. Id. at 914-15. In Ferrante, the underlying complaint was void, so there was no
“commencement” of the prosecution. Id.

       More similar to the case herein is State v. Michael Bruce McCloud, No. E2008-01541-
CCAR3-CD, 2009 WL 1643445 (Tenn. Crim. App., at Knoxville, June 12, 2009). In
Michael Bruce McCloud, the defendant was convicted of DUI, second offense. On appeal,
the defendant argued that the trial court erred in denying the motion to dismiss where the
prosecution was not commenced within the twelve-month statute of limitations. Id. at *6.
The State argued that the prosecution commenced on February 20, 2004, the date of the
offense and the issuance of the affidavit of complaint. In the alternative, the State relied on

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the date that the defendant was bound over to the grand jury, approximately eight months
after the offense. The defendant, on the other hand, citing Ferrante, argued that because the
indictment was not issued until more than twelve months after the offense and “the affidavit
of complaint did not allege the essential elements of the offense, the bind-over was
ineffective to commence the prosecution.” Michael Bruce McCloud, 2009 WL 1643445, at
*8. This Court disagreed, finding that “unlike Ferrante, there was a judicial finding of
probable cause [when the defendant’s case was bound over to the grand jury within the
twelve month period of time] and a statutorily sufficient commencement of the prosecution
within 12 months of the commission of the offense.” 2009 WL 1643556, at *8. Thus, the
prosecution was commenced within the statute of limitations, and the trial court properly
denied the motion to dismiss. Id.

       In the case herein, the offense occurred on September 28, 2007. Appellee, represented
by counsel, waived his right to a preliminary hearing, and the case was bound over to the
grand jury on July 24, 2008. In other words, Appellee was bound over to the grand jury
within twelve months of the date of the offense. Consequently, the State timely commenced
prosecution within the statute of limitations, and the trial court improperly granted the motion
to dismiss the indictment. Therefore, the judgment of the trial court is reversed and
remanded. On remand, the indictment should be reinstated and the matter proceed
accordingly.

                                         Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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