          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON         FILED
                            JUNE 1997 SESSION         July 18, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      )   NO. 02C01-9702-CC-00076
      Appellant,                      )
                                      )   MADISON COUNTY
VS.                                   )
                                      )   HON. WHIT LAFON, JUDGE
JOE DAVID SLOAN,                      )
                                      )   (Possession with Intent to Sell
      Appellee.                       )   and/or Deliver a Schedule II
                                      )   Controlled Substance)



FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN KNOX WALKUP                          CLIFFORD K. McGOWN, JR.
Attorney General and Reporter             (appeal only)
                                          113 North Court Square
KENNETH W. RUCKER                         P.O. Box 26
Assistant Attorney General                Waverly, TN 37185
450 James Robertson Parkway
Nashville, TN 37243-4351                  GEORGE MORTON GOOGE
                                          (at trial and of counsel on appeal)
JERRY WOODALL                             District Public Defender
District Attorney General
                                          STEPHEN P. SPRACHER
SHAUN A. BROWN                            (at trial and of counsel on appeal)
Assistant District Attorney General       Assistant Public Defender
Lowell Thomas State Office Building       227 West Baltimore Street
225 Martin Luther King Drive              Jackson, TN 38301
Jackson, TN 38301




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                     OPINION



      Pursuant to Rule 3(c) of the Tennessee Rules of Appellate Procedure, the

State of Tennessee appeals the order of the Circuit Court of Madison County

dismissing the indictment charging Joe David Sloan with possession with the intent

to sell and/or deliver methamphetamine, a Schedule II controlled substance. Sloan

filed a pro se Motion to Dismiss, and after a hearing, the trial court dismissed the

indictment. We reverse the decision and remand to the trial court for further

proceedings.



                                 BACKGROUND



      In April 1993, Sloan was indicted for the possession of methamphetamine,

a Schedule II controlled substance, with the intent to sell and/or deliver. The

offense allegedly occurred on or about September 19, 1992. Apparently, at the

same time he was arrested for the possession of methamphetamine, he was also

charged with possession of marijuana. According to Sloan’s unsworn statement to

the trial court, he pled guilty in City Court to simple possession of marijuana on

September 20, 1992.      The record does not contain a City Court warrant or

judgment.

      After the indictment was returned, the state could not apprehend Sloan since

he was incarcerated in Florida at the time. In August 1993, Sloan was released on

parole in Florida. He was thereafter incarcerated in the Tennessee Department of

Correction on an unrelated charge. Sloan was arraigned on the present charge on

September 19, 1996.

       Subsequently, Sloan filed a pro se motion to dismiss the indictment of April

5, 1993. A copy of the motion is not included in the record. Counsel was appointed

on Sloan’s behalf. The trial court held a hearing on December 3, 1996.

       At the hearing on the motion, Sloan stated that he based his motion on the

grounds of double jeopardy. The state began to make its argument on double


                                         2
jeopardy when the trial court interjected:

       THE COURT: All right now, stop.

             Mr. Spracher, do you wish to amend his motion that it be
       dismissed for failure to have a speedy trial?

       MR. SPRACHER: We could do that, Your Honor.

       THE COURT: Do you do that?

       MR. SPRACHER: We do that, Your Honor.

       THE COURT: All right, I grant that motion.

       MR. BROWN: Your Honor, could I just state for the record that his
       speedy trial doesn’t come up until he’s served with a warrant. He’s
       never been served until the past month or so.

       THE COURT: Well is there any other way I can dismiss it?

       MR. SPRACHER: Yes, sir, mandatory joinder.

       THE COURT: Do what?

       MR. BROWN: No, sir, Your Honor --

       THE COURT: I want something that will stand. Mr. Brown, this man
       has been in jail down there. He’s here, and this thing has been
       pending that length of time, and if he can go back to Florida and get
       himself straightened out, we’ll all be better off. Now how can I do it?

...

       The state then continued its argument in opposition to the double jeopardy

grounds when the court interrupted as follows:

       THE COURT: Well I’m going to dismiss it.

       MR. BROWN: Yes, sir. For that reason, Your Honor, or for the length
       of time?

       THE COURT: Both of them. Do you see what I’m trying to do, Mr.
       Brown?

       MR. BROWN: Yes, sir.

       No evidence was presented at the hearing, other than the unsworn

statements of Sloan and arguments of counsel.

       Other than speedy trial grounds, the trial court never articulated on what

other basis the indictment was dismissed.        The written order dismissing the

indictment provides as follows:

       This cause came to be heard . . . upon the defendant’s pro se written
       Motion to Dismiss and the Public Defender’s oral Motion to Dismiss


                                         3
       for lack of a speedy trial. It being shown to the Court that the matter
       should be dismissed for both reasons stated by the defense . . .

       While it is clear that the trial court dismissed the indictment on speedy trial

grounds, the transcript of the hearing and the written order are unclear as to the trial

court’s ruling on the issues of double jeopardy and mandatory joinder.

Consequently, we will address all three issues.



                               DOUBLE JEOPARDY



       The state argues that the trial court erred in dismissing the indictment on the

grounds of double jeopardy. The state asserts that the misdemeanor possession

of marijuana (a Schedule VI controlled substance) and the felony possession with

the intent to sell and/or deliver a Schedule II controlled substance constitute two

separate and distinct offenses. Therefore, the state contends that no double

jeopardy violation exists.

       In State v. Campbell, 549 S.W.2d 952 (Tenn. 1977), the Supreme Court held

that the sale of two separately scheduled controlled substances constitutes two

separate and distinct offenses which would permit separate convictions.

Subsequently, the court extended its holding in Campbell to state that the

possession with the intent to sell two or more controlled substances within the same

schedule constitutes separate and distinct offenses. State v. Collier, 567 S.W.2d

165, 166 (Tenn. 1978). In both cases, the Supreme Court considered the legislative

history of the Drug Control Act and concluded that the legislature intended that the

sale of each substance should constitute a separate act.

       Methamphetamine is classified as a Schedule II controlled substance. Tenn.

Code Ann. § 39-17-408(d).        Because marijuana is a Schedule VI controlled

substance, possession of marijuana constitutes a separate offense distinct from the

possession of methamphetamine with the intent to sell and/or deliver. See Tenn.

Code Ann. § 39-17-415(1). Accordingly, a prosecution on the indictment would not

be barred on the grounds of double jeopardy.




                                           4
                               MANDATORY JOINDER



         Sloan submits that the trial court properly dismissed the indictment due to the

state’s failure to join the offenses under Tenn. R. Crim. P. 8(a). The state instead

asserts that mandatory joinder was not a basis for the dismissal of the indictment.

However, even if mandatory joinder was a basis for dismissal of the indictment, the

state claims that this was error because Rule 8(a) does not apply in this case. We

agree.

         Rule 8(a) of the Tennessee Rules of Criminal Procedure provides in pertinent
part:

         Two or more offenses shall be joined in the same indictment,
         presentment, or information, with each offense stated in a separate
         count, or consolidated pursuant to Rule 13 if the offenses are based
         upon the same conduct or arise from the same criminal episode and
         if such offenses are known to the appropriate prosecuting official at
         the time of the return of the indictment(s), presentment(s), or
         information(s) and if they are within the jurisdiction of a single court.

Defendant argues this rule bars the prosecution of the offense involving

methamphetamine because this offense arose out of the same conduct as the

offense involving marijuana.

         The Tennessee Rules of Criminal Procedure govern the procedure

conducted in “all courts of record in Tennessee,” subject to some enumerated

exceptions.     Tenn. R. Crim. P. 1.        However, Sloan allegedly pled guilty to

possession of marijuana in City Court, which is not a “court of record.” In addition,

Rule 8 is not specifically enumerated under Rule 1 as being applicable to the

General Sessions Courts.1 Furthermore, this court has previously held that Rule

8(a) does not apply to criminal proceedings before the General Sessions Courts.

State v. Teresa G. Pickett, C.C.A. No. 01C01-9301-CC-00026 (Tenn. Crim. App.

filed December 2, 1993, at Nashville); see also State v. Roy C. Curtis, C.C.A. No.

01C01-9002-CC-00047 (Tenn. Crim. App. filed October 18, 1990, at Nashville).

The misdemeanor marijuana charge could be disposed of in City Court, whereas



         1
         The term General Sessions Court as provided by Rule 1 includes municipal courts
exercising the jurisdiction of a General Sessions Court. Tenn. R. Crim. P. 1, Advisory
Commission Comments.

                                            5
the felony methamphetamine charge could not. See Tenn. R. Crim. P. 5 and 5.1.

Therefore, the state was not required to join these two offenses into one

prosecution.



                                    SPEEDY TRIAL



         The state claims that the trial court erred in dismissing the indictment for lack

of a speedy trial. The state complains that Sloan was allowed to orally amend his

motion to include speedy trial grounds. The state further asserts that because the

trial court did not allow the state to present proof as to the reason for the delay, the

court was ruling that the three and a half year delay “constituted a speedy trial

violation as a matter of law.”

         In Barker v. Wingo, the United States Supreme Court developed a balancing

test to determine when a defendant has been denied his right to a speedy trial

under the Sixth Amendment. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In Barker the court discussed the balancing of four factors: (1) the length of the

delay, (2) the reason for the delay, (3) whether the defendant asserted a claim to

his right, and (4) whether defendant was prejudiced by the delay. Id. Our Supreme

Court adopted this balancing test in State v. Bishop, 493 S.W.2d 81, 83-84 (Tenn.

1973).

         The length of the delay is the “triggering mechanism that will necessitate the

consideration of the other three factors.” State v. Wood, 924 S.W.2d 342, 346

(Tenn. 1996). However, the length of the delay alone will not support a finding of

a speedy trial violation. State v. Vance, 888 S.W.2d 776, 778 (Tenn. Crim. App.

1994); State v. Kolb, 755 S.W.2d 472, 474 (Tenn. Crim. App. 1988). It is necessary

to balance the length of the delay along with the other three Barker factors in order

to determine if a speedy trial violation has occurred. Kolb, 755 S.W.2d at 474.

         In the present case, the trial court’s ruling did not reflect a balancing test of

the four Barker factors. Nor was the ruling based upon any evidence other than the

time between the indictment and the subject hearing. Accordingly, this case is



                                             6
remanded for a hearing so that the trial court may allow proof and make findings of

fact and conclusions of law concerning the alleged speedy trial violation.



                                 CONCLUSION



      For the foregoing reasons, this Court respectfully reverses the order of the

trial court and remands for further proceedings consistent with this opinion.




                                                JOE G. RILEY, JUDGE




CONCUR:




PAUL G. SUMMERS, JUDGE




DAVID H. WELLES, JUDGE




                                         7
