            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON

                STATE OF TENNESSEE v. TIMOTHY WILLIAMS

                  Direct Appeal from the Criminal Court for Shelby County
                         No. GS-00987 Carolyn Wade Blackett, Judge



                     No. W1999-01193-CCA-R3-CD Decided May 5, 2000


In this appeal of right from the Shelby County Criminal Court, the defendant contends that his de
novo appeal from a judgment of the General Sessions Court was erroneously dismissed at a status
hearing. Because the Criminal Court Clerk failed to provide notice of the status hearing to
defendant's counsel of record, the judgment of dismissal is reversed and the cause is remanded to
the trial court for a hearing.

Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Remanded

WADE, P.J., delivered the opinion of the court, in which WOODALL and WITT, JJ., joined.

Kendall Reeves, Memphis, Tennessee, for the appellant, Timothy Williams.

Paul G. Summers, Attorney General and Reporter, and Tara B. Hinkle, Assistant Attorney General,
William L. Gibbons, District Attorney General, and Betty Carnesale, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                The defendant, Timothy Williams, was charged with and convicted of driving under
the influence, first offense, in Shelby County General Sessions Court. The defendant was sentenced
to 11 months, 29 days, in jail, with 10 months, 14 days suspended.1 During his period of probation,
he was again charged with driving under the influence and the state filed a violation of probation
warrant. The General Sessions Court revoked probation and ordered service of the balance of his
sentence. The defendant, after posting a $5,000 cash bond, appealed to the Criminal Court of Shelby
County. When the defendant failed to appear at a status hearing, the Criminal Court dismissed the
appeal and remanded the cause to the General Sessions Court. The defendant moved to set aside the
order and the trial court declined to grant relief.


       1
         This information is taken from the Affidavit of Complaint regarding the defendant's
violation of probation. The judgment of the trial court on the defendant's driving under the influence
charge is not included in the record.
                In this appeal of right, the defendant claims a due process violation due to "inadequate
and improper notice" of the hearing in the Criminal Court. Because defense counsel of record did
not receive notice of the scheduled status hearing, the order dismissing the defendant's appeal is set
aside and the cause is remanded to the Criminal Court of Shelby County for a hearing on the merits.

                 The defendant, of course, was entitled to appeal the revocation of probation order
rendered in the Shelby County General Sessions Court. Tenn. Code Ann. § 40-35-311(e); Tenn. R.
Crim. P. 5(c)(2). The facts here are not in dispute. The record is comprised primarily of a statement
of the evidence. The March 26, 1999, notice of appeal to the Criminal Court bears the name,
signature, address, and telephone number of the defendant's attorney. The form and substance of the
notice was approved by a Shelby County General Sessions Court judge. The notice includes a
certificate of delivery to the Office of the District Attorney General at the proper address in Shelby
County.

                On April 28, 1999, by regular mail the clerk of the Criminal Court sent a notice
directly to the defendant which, in pertinent part, provided as follows:

               [Y]ou are . . . notified that the . . . case is set for ATTORNEY
               STATUS at 9:30 a.m., on JUNE 4, 1999, in SHELBY COUNTY
               CRIMINAL COURT, DIVISION FOUR, 5TH FLOOR, 201 POPLAR
               AVENUE, MEMPHIS, TN 38103, to determine whether or not you
               are represented by an attorney and your ability to retain an attorney.

               You have the right to an attorney of your choice and the Constitution
               guarantees you the right to be represented. However, it is important
               that you either appear with your attorney at the above date and time,
               or have three (3) attorneys sign and date the form on the reverse side
               of this letter and present it to the court upon your appearance.

(emphasis added.)

                The notice was not mailed to the defendant's counsel of record. The defendant did
not appear at the hearing and the Criminal Court judge dismissed the appeal and remanded the case
to the General Sessions Court for the imposition of sentence. On June 28, 1999, the defendant's
counsel received a certified letter from the Sessions Court clerk notifying him of the action taken in
the Criminal Court and setting a court appearance for July 8, 1999. On that date, the defendant and
his counsel of record appeared in the Criminal Court and asked to reinstate the appeal. The request
was denied.

                The statement of evidence provides that the June 28 letter was "the very first notice
Defendant or his attorney had received concerning any activity regarding his appeal. . . ." The
statement also provides that the "Defendant never received [the April 28, 1999] letter, which was
neither certified nor registered, and therefore he did not know he was to appear" at the June 4, 1999,
proceeding. The state did not contest that assertion.

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               In this appeal, the defendant argues that the procedure utilized violated his right to
due process of the law. In response, the state insists that the use of regular mail for notification of
a court appearance meets constitutional standards. See, e.g., Mennonite Board of Missions v.
Adams, 462 U.S. 791 (1983).

             In our view, it is not necessary to address the constitutional issue. Rule 49 of the
Tennessee Rules of Criminal Procedure provides as follows:

                 (b) Service: How made. Whenever by law or under these rules or
               by an order of the court service is required or permitted to be made
               upon a party represented by an attorney, the service shall be made
               upon the attorney unless service upon the party in person is required
               by law or is ordered by the court. Service upon the attorney or upon
               a party shall be made by delivering to that person a copy of the
               document to be served, or by mailing it to that person at his or her last
               known address, or if no address is known, by leaving the copy with
               the clerk of the court. Delivery of a copy within this rule means:
               placing it in the hands of the attorney or of the party; or leaving it at
               that person's office with a clerk or other person in charge thereof or,
               if there is none in charge, leaving it in a conspicuous place therein; or,
               if the office is closed or the person to be served has no office, leaving
               it at the person's dwelling house or usual place of abode with some
               person of suitable age and discretion then residing therein. Service
               by mail is complete upon mailing.

Tenn. R. Crim. P. 49(b) (emphasis added).

               Initially, the notice, which was issued by the Criminal Court clerk, was not mailed
or otherwise delivered to the defendant's attorney as required by the rule. Moreover, the hearing was
not for the consideration of the merits of the appeal but, according to the terms of the notice, to
ascertain whether the defendant had counsel, which was readily apparent from court documents
which appear in the record.

               Under these circumstances, the order of dismissal must be set aside. The cause is
remanded to the Criminal Court of Shelby County for a determination on the merits on the appeal
of the revocation of probation.




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