        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                         JULY SESSION, 1998             November 5, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,            )   C.C.A. NO. 03C01-9711-CR-00487
                               )
      Appe llant,              )
                               )
                               )   KNOX COUNTY
VS.                            )
                               )   HON. MARY BETH LEIBOWITZ
HUGH RAY WILSON,               )   JUDGE
                               )
      Appellee.                )   (State A ppeal - D ismissa l of W arrant)




       ON APPEAL AS OF RIGHT FROM THE JUDGMENT OF THE
               CRIMINAL COURT OF KNOX COUNTY



FOR THE APPELLEE:                  FOR THE APPELLANT:

HERBERT S. MONCIER                 JOHN KNOX WALKUP
Suite 775 NationsBank Center       Attorney General and Reporter
550 Main Avenue
Knoxville, TN 37902                ELLEN H. POLLACK
                                   Assistant Attorney General
                                   425 5th Avenu e North
                                   Nashville, TN 37243

                                   RANDALL E. NICHOLS
                                   District Attorney General

                                   REBECCA A. BELL
                                   ROBERT JOLLEY
                                   Assistant District Attorneys General
                                   City-County Building
                                   Knoxville, TN 37902


OPINION FILED_________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION
       The State a ppea ls the dismissal of an arrest warrant by the Knox Coun ty

Criminal Court. T he De fendan t was con victed of driving un der the influen ce in

Knox County General Sessions Court, but on appe al, the Criminal C ourt

overturned the conviction, holding that the warrant upon which the conviction was

based was void ab initio. On appeal, the State contends that the warrant, which

was initially defective, was properly amended prior to trial, and thus, the

conviction should s tand. In addition, the Defendant appeals a ruling allowing the

State to appeal the dismissal of the warrant. The Defendant contends that Rule

3 of the Tennesse e Rules of Appe llate Proce dure do es not allo w the Sta te to

appeal the dismissal of an arrest warrant. Tenn. R. App. P. 3. W e conclude that

the State has the rig ht to appe al the dism issal of the w arrant, and we affirm the

trial court’s conclusion that the warrant was void.



       On April 16, 1996, the Defendant, Hugh Ray Wilson, was arrested without

a warrant on the charge of driving under the influence. On the same day, the

officer who arrested the Defendant presented an affidavit to Judicial

Commissioner John Sholly, who attested the affidavit of complaint and issued an

arrest warrant. Although the affidavit contained the officer’s address, division,

and ph one nu mber, th e officer/affian t failed to sign the affidavit.



       The case was in itially set for April 24, 1996, and was thereafter continued

to June 1 0, 1996 and later J uly 11, 19 96. At the July 11 hearing, the Defendant

entered a formal plea of not guilty. At each successive proceeding, each of the

Knox County General Sessions judges scheduled to hear the case recused

hims elf or herself because of personal acquaintance with the Defendant. The



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case was eventually set for Augu st 21, 199 6 before Judge Murch , a judge from

out of county who was specially designated to hear the case in place of the

recused Knoxville judges.



      On August 19, 1996, two days before the scheduled hearing, the

prosecutor appeared before Judge Tony Stansberry, who had previously recused

hims elf from the case, to cure the defective warrant. The Defendant was not

notified of the proceeding. The officer who arrested the Defendant was present

at the proceeding. Judge Stansberry witnessed the officer’s signature being

placed on the original affidavit. The judge then scratched through Commissioner

Sholly ’s signature and signed his name to both the affidavit and the warra nt. The

date, April 16, 1996, remained untouched.



      On August 21,1996, at the hearing before Judge Murch, Defendant Wilson

was notified of the changes to the warrant and moved to dismiss it. His motion

was overruled, and he was subsequently convicted in general sessions court of

driving under the influence. The Defendant next filed an appeal to the Knox

Coun ty Criminal Court and again moved to dismiss the warrant. A hearing was

held on Augu st 7, 1997 befo re Knox County Crimina l Court Ju dge M ary Beth

Leibowitz; and on October 8, 1997, Judge Leibowitz filed a Memorandum Opinion

dismissing the warrant, finding tha t it was “void from the beginning,” and

dismissing the Defe ndant’s driving und er the influe nce co nviction. T he State

moved to reconsider, but the State’s motion was not addressed by the trial court

becau se the S tate subs equen tly filed a notice of appe al to this Co urt.



      A thresho ld issue, ra ised by the Defendant, is whether the State has the

right to appeal to this Court, purs uant to Rule 3 of the Tennessee Rules of


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Appe llate Procedure, from the dismissal of an arrest warrant. Tenn. R. App. P.

3. We conclude that it does.



       The Defendant initially raised this issue on a motion to dismiss the State’s

appe al. We overruled the motion, but reserved our final decision until the appeal

was heard in full. Judge Wit t, who made the preliminary ruling on this issue,

noted that the pro vision of R ule 3 permitting an app eal as of rig ht by the S tate

from the dismissal of a “complaint” could include the dismissal of an “arrest

warran t.” He observe d that a “‘co mplain t’ in the conte xt of a criminal proceeding

may be fairly understood to mean the entire misdemeanor proceeding, during

which an arrest warrant may have been iss ued, wh ich proce eding n ever resu lts

in an indictme nt or inform ation.” The D efend ant arg ues th at the la ngua ge of R ule

3 does not expressly provide for an appea l from dism issal of an a rrest warra nt.

He asserts that allowing such an appeal would be an enlarg eme nt of the State’s

grounds for appeal, an issue which should be addressed by the legislature rather

than the judiciary. We disagree.



       Rule 3(c) of the Tennessee Rule s of Appellate Procedure sets forth the

grounds for an appeal as of right for the State:

       In criminal actions an appeal as of right by the state lies only from
       an order or judgment entered by a trial court from which an appeal
       lies to the S uprem e Cou rt or Co urt of C riminal Appeals: (1) the
       substantive effect of which results in dismissing an indictmen t,
       information, or complain t; (2) setting aside a verdict of g uilty and
       entering a judgment of acquittal; (3) arresting judgment; (4) granting
       or refusing to revoke probation; or (5) remanding a child to the
       juvenile court. The state may also appeal as of right from a final
       judgment in a habeas corpus, extradition, or post-conviction
       proceeding.

Id.




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    Our jurisdiction by statute extends to review of the final judgments of trial

courts in “proceedings instituted with reference to or arising out of a criminal

case.” Tenn. Code Ann. § 16-5-108(a)(2). Rules 37(a) and (b) of the Tennessee

Rules of Criminal Pro cedure provide that an appeal as of right “lies from any

order or judgment in a criminal proceeding where the law provides for such

appea l.” Tenn. R. Crim. P. 37 (a), (b). This Court has previously observed that

“the statute establishing jurisdiction in th is Cou rt appa rently a nticipa tes tha t all

final judgm ents arising out of criminal cases are appea lable.” State v. McC ary,

815 S.W.2d 220, 221 (Tenn. Crim. App. 1991); see State v. Warren Sego, No.

02C01-9411-CC-00244, 1995 WL 454020, at *1 (Tenn. Crim. App., Jackson,

Aug. 2, 1995 ); State v. Talmadge G. Wilbanks, No. 02C01-9601-CR-00003,

1996 W L 6681 19, at *3 (T enn. C rim. App ., Jackso n, Nov. 19 , 1996).



       In the present case, the State appeals the dismissal of an arrest wa rrant.

W e decline to base our decision on an exclusively literal interpretation of the

language of Rule 3 of the Tennessee Rules of Appellate Procedure because we

conclude that the State’s appeal is from a judgm ent entered b y the trial court

arising out of a crim inal pro secu tion an d is the refore prope rly before th is Court.

Tenn. R. App. P. 3. To hold otherwise would result in the trial court becoming the

final arbiter in deciding to dism iss a criminal warra nt, a result which we think

would contradict the policies underlying judicial review.



       W e turn now to the principal issue before us, namely, whether the trial

court erred in dismissing the warrant charging the Defendant with driving under

the influence . The S tate cites Rule 7(b) of the Tennessee Rules of Criminal

Procedure, which allows for amendment of an indictment without the De fenda nt’s

consent provided that no additional offense is charged, no substantial rights of


                                           -5-
the Defendant are prejudiced, and the amendment occurs before jeopardy

attaches. Tenn. R. Crim . P. 7(b). The State also points to cases in which the

court no tes that am endm ents of wa rrants, like a mend ments of indictments, are

within the discre tion and a uthority of the trial court. See Murff v. Sta te, 425

S.W.2d 286, 288 (Te nn. 1967); State v. Gross, 673 S.W.2d 552, 554 (Tenn.

Crim. App. 19 84). Th e State contends that the warrant in the present case was

prope rly ame nded prior to tr ial.



       W hile the law is clear in Tennessee that a warrant may be amended, we

cannot agree that the proceedings in this case amount to an amendme nt of a

valid warrant, as suggested by the State. What the State seeks to characterize

as an “am endm ent” appears to have been a classic attempt to “make a silk purse

out of a sow’s ear.” Under Tennessee law, if a warrant does not meet procedural

and constitutional requirem ents, it is invalid. State v. Burtis, 664 S.W.2d 305

(Tenn. Crim. A pp. 198 3). A void wa rrant inv alidate s all subsequent proceedings

emanating from the warrant. State v. Cam pbell, 641 S.W .2d 890 (Te nn. 1982).

No valid conviction can occur if the charging instrument is void. State v. Morgan,

598 S.W .2d 796, 797 (Tenn. Crim . App. 1979 ).



       Proper proce dure in Tennessee for the issuance of a warrant requires that

the “affidavit of com plaint . . . be m ade up on oath before a magis trate or a neutral

and detache d court cle rk . . . .” Tenn. R . Crim. P . 3. Section 40-6-20 3 of the

Tennessee Code Annotated states: “Upon information made to any mag istrate

of the commission of a public offense, the magistrate shall examine, on oath, the

informant, reduce the examination to writing, and cause the examination to be

signed by the person making it.” Tenn. Code Ann. § 40-6-2 03. The magis trate




                                          -6-
then reviews the affidavit of complaint to dete rmine wheth er ther e is pro bable

cause for an arrest. Tenn. R. Crim. P. 4 (a)-(b); Tenn. Code Ann. § 40-6-205.



       Here, the affidavit supporting the warrant was not signed before issuance

of the warra nt. The S tate later attempted to remedy the omission by going before

a second judge who allowed a belated signature by the affia nt and who h imse lf

signed over the crossed-out signature of the judge who had formerly issued the

warran t. We must view the warrant at the time it was issued. Because there was

no affiant’s signature and thus no sworn statement to support the issuance of a

warran t, we find that the warrant at issue was never valid. Therefore, any attempt

to amen d it was inc onseq uential. A n ullity may no t be corre cted by a mend ment.

“If it’s void, it’s void.”   Pro fessor E lvin E. Overton, University of Tennessee

College of Law.



       As the trial court aptly noted, the State had a num ber of op tions at its

dispo sal. The State could have dismissed the defective warrant and reinstituted

proceedings against the Defendan t through , for instanc e, re-arres t, indictme nt,

or presen tment. See Tenn. R . Crim. P . 4; Wa ugh v. Sta te,564 S.W.2d 654

(Tenn. 1978); Jones v. State, 332 S.W .2d 662, 667 (Tenn. 196 0) (noting that

indictment by grand jury nullifies questions regarding the sufficiency of the

warrant). However, at this time and without any further action on the part of the

State, we view any discussion of whether the State m ay now re institute

proceedings against the Defendant as premature.



       The judgment of the trial court is affirmed.




                                          -7-
                         __________________________________
                         DAVID H. WELLES, JUDGE

CONCUR:



_________________________________
CURWOOD WITT, JUDGE


_________________________________
WILLIAM H. INMAN, SENIOR JUDGE




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