         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 27, 2001

                   STATE OF TENNESSEE v. MARK A. SHULTZ

                        Appeal from the Circuit Court for Sevier County
                             No. 7031    Rex Henry Ogle, Judge



                                 No. E2000-02013-CCA-R3-CD
                                        August 20, 2001

The state appeals the trial court’s dismissal of its prosecution of the defendant, Mark A. Shultz, for
driving under the influence of an intoxicant (DUI). It contends that the trial court’s conclusion that
the case had been left unresolved too long could not lawfully justify dismissal. We reverse the trial
court and remand the case for further proceedings.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case
                                       Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ROBERT W. WEDEMEYER , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Glen C. Watson, Assistant Attorney General;
Alfred C. Schmutzer, Jr., District Attorney General; and Charles E. Atchley, Assistant District
Attorney General, for the appellant, State of Tennessee.

Joe M. Felknor, Knoxville, Tennessee, for the appellee, Mark A. Shultz.

                                             OPINION

      By presentment, the defendant was charged on October 6, 1997, with DUI. The presentment
alleges that the offense occurred on September 8, 1996. It also alleges that the defendant was
charged by warrant on that date but that the warrant was dismissed on July 18, 1997. On July 21,
1998, the defendant moved to dismiss the presentment because of the lack of a speedy trial and the
expiration of the statute of limitations. The hearing on the motions occurred on July 19, 2000.

        At the hearing, no proof was taken. Instead, counsel for the parties made factual assertions.
Defense counsel asserted that the arresting officer failed to appear numerous times in the Trial
Justice Court and that the “Docket” noted that the officer failed to appear at the time the warrant was
dismissed. He argued that, in effect, the prosecution never commenced and that the one-year statute
of limitations was not tolled by its filing. The state asserted that the case had been set for trial on
August 18, 1998, and then March 31, 1999, but had been continued both times at the request of the
defense. Although the defendant’s motion to dismiss the case for lack of a speedy trial alleged that
material witnesses once available to him had left the jurisdiction and their whereabouts were
unknown, no assertions, much less evidence, were proffered at the hearing regarding the nature of
the witnesses’ testimony.

        The trial court appeared focused upon the length of time that the case had remained
unresolved since the arrest. Although it discussed dismissing the case because of the failure of the
officer to appear on the date of the hearing, the state asserted that the case was taken off the trial
docket and that only the motions were to be heard. It asserted that the officer was not needed for the
motions. Thus, the trial court simply stated that the case needed to be laid to rest and dismissed the
case.

       The state asserts that no grounds exist in the record to support a dismissal of the case. The
defendant attacks what we perceive to be factual and argument minutiae in the state’s brief, as if to
focus our attention on the trees instead of the forest. The gist of his argument, though, is that the
record on appeal does not support the state’s claim of a valid, timely prosecution.

         Without the trial court taking any evidence, we see no basis in the record to support granting
either of the defendant’s motions to dismiss. In fact, the nature of the trial court’s dismissal indicates
that it was more likely based upon a failure to prosecute rationale. However, again, the record does
not contain any material evidence that would justify such a result. In fact, the record indicates the
contrary. The state filed its discovery response and motion for discovery from the defendant in July
1998. The case was set for trial on August 18, 1998, and then on March 31, 1999, but was continued
both times at the defendant’s request. Thus, we conclude that no justification exists in the record
for a dismissal of the prosecution.

      In consideration of the foregoing and the record on appeal, we reverse the trial court and
remand the case for further proceedings.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, JUDGE




                                                   -2-
