         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE           FILED
                       NOVEMBER, 1997 SESSION
                                                   February 6, 1998

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,          )
                             )   No. 03C01-9701-CC-00036
      Appellee,              )
                             )   Blount County
vs.                          )
                             )   Honorable D. Thomas Kelly, Judge
STEVE JOYNER,                )
                             )
                             )   (Probation Revocation)
      Appellant.             )



FOR THE APPELLANT:               FOR THE APPELLEE:

MACK GARNER                      JOHN KNOX WALKUP
District Public Defender         Attorney General & Reporter
419 High St.
Maryville, TN 37804-4912         MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 MICHAEL L. FLYNN
                                 District Attorney General

                                 PHILLIP H. MORTON
                                 Assistant District Attorney General
                                 363 Court St.
                                 Blount County Courthouse
                                 Maryville, TN 37804-5906




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                       OPINION



                The defendant, Steve Joyner, 1 appeals pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the revocation of his probation by the

Circuit Court of Blount County. On June 22, 1992, the defendant pleaded guilty to

conspiracy to sell lysergic acid diethylamide, a Class C felony, and was sentenced

to serve eight years as a Range 2, multiple offender. 2 The trial court suspended all

but thirty days of the sentence and ordered the defendant to serve seven years and

eleven months on supervised probation. The court issued a violation warrant on

July 16, 1996, and, after a hearing, the court revoked the defendant’s probation and

ordered him to serve one year in the county jail and seven years in Community

Corrections.3



                In this appeal, Joyner contends that the state’s delay in filing the

probation violation report constitutes a denial of his right to a speedy trial. After

carefully reviewing the record on appeal and the applicable law, we hold that the

delay, in this instance, violated neither his right to a speedy trial nor his due process

rights, and we affirm the trial court’s order revoking the defendant’s probation.



                The defendant was placed on probation in August, 1992 in Blount

County.    Shortly thereafter, he moved to Knox County and his probation was

transferred. Although the exact dates are not in the record, Joyner admits that he


1

       The indictment names the defendant in this case as Steve “Joyner.”
Although other documents in the record spell the defendant’s surname as
“Joiner,” we follow the spelling used on the indictment in accordance with the
custom of this court.
2

        According to the presentence report, the defendant also pleaded guilty to
possession of drug paraphernalia. The record contains no judgment form
reflecting this conviction.
3

      The defendant received 60 days of jail credit and will be eligible for work
release provided that he pay $50.00 per week toward his fines and costs from
his wages. He will also be eligible for any Community Correction programs that
the CCP officer believes are appropriate while he is in jail.

                                           2
was convicted of driving under the influence in August, 1993 and of driving on a

revoked license in the summer of 1994. He testified that he informed his Knox

County probation officer of both offenses. Joyner also admitted that he was under

investigation in 1994 for having sexual relations with a sixteen-year old girl but that

no charges were ever filed. In February, 1995, Joyner returned to Blount County,

and, in August, 1995, he tested positive for marijuana. Finally, on July 10, 1996, a

Blount County probation officer, who had recently received the defendant’s case,

filed a probation violation report, alleging that, in addition to the two convictions and

the positive drug screen, the defendant had failed to pay the costs of his probation

after October, 1995 and had made only sporadic payments to the court. The trial

court issued an arrest warrant on July 16, 1996. The trial judge revoked Joyner’s

probation on September 24, 1996 after conducting an evidentiary hearing.



              The defendant now contends that the state’s delay in bringing these

violations to the attention of the trial court violates his right to a speedy trial under

the Sixth Amendment to the United State Constitution and Article 1, Section 9 of the

Tennessee Constitution. The state contends that the defendant has waived this

issue by his failure to raise it in the trial court. On the merits of the issue, the state

argues that this case raises no question involving the right to speedy trial and that,

although the facts may support a due process argument, the defendant’s Fifth

Amendment right to due process was not violated in this case. We agree with the

state’s conclusions although our reasoning differs in some respects.4



               The United States and Tennessee Constitutions guarantee the

criminally accused the right to a speedy trial. U.S. Const. amends. VI & XIV; Tenn.

Const. art. 1, § 9; State v. Demetrius Dewayne Utley, --- S.W.2d ---, No. 01-S01-

9604-CR-00120 slip op. at 4 (Tenn., Nov. 17, 1997). The right to a speedy trial is

4

      The defendant failed to raise this issue in the trial court as required by
Rule 12(b) of the Tennessee Rules of Criminal Procedure and Rule 36(a) of the
Tennessee Rules of Appellate Procedure, and is, therefore, not entitled to
review. However, we choose to review the issue on its merits. Tenn. R. App. P.
2.

                                            3
also statutory in Tennessee. Tenn. Code Ann. § 40-14-101 (1990). A probation

revocation proceeding is a continuation of the original criminal prosecution, and the

defendant in such a proceeding has a constitutional right to a speedy trial on the

offense of violation of the terms of probation. Allen v. State, 505 S.W.2d 715, 719

(Tenn. 1974); State v. Robin N. Clark, No. 03C01-9603-CC-00118, slip op. at 6-7

(Tenn. Crim. App., Knoxville, Mar. 25, 1997); State v. Futina M. Carlton, No. 01C01-

9512-CR-00417, slip op. at       2 (Tenn. Crim. App., Nashville, April 26, 1996).

However, no Sixth Amendment speedy trial problem arises until after the state

begins formal accusatorial proceedings, such as an arrest or grand jury action,

against the defendant. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455,

459-463 (1971); State v. Gray, 917 S.W.2d 668, 671(Tenn. 1996); State v. Baker,

614 S.W.2d 352, 353 (Tenn. 1981).5           In this case, the defendant’s arrest for a

violation of probation in July of 1996 triggered the defendant’s speedy trial right, and

the hearing was held two months later.            Clearly the defendant suffered no

abridgment of his right to a speedy trial.



              Our inquiry may not stop with this conclusion, however, because the

violation report indicates that the most recent violation of probation occurred eleven

months prior to the defendant’s arrest and that other violations occurred a year or

two years earlier. Although delay between the commission of an offense and the

commencement of adversarial proceedings does not violate an accused’s

constitutional right to a speedy trial, the delay may occur in a manner that infringes

upon an accused’s right to due process under the Fifth Amendment. United States

v. Lovasco, 431 U.S. 788, 789, 86 S.Ct. 2044, 2048 (1977); Marion, 404 U.S. at

324, 92 S. Ct. at 465; Demetrius Dewayne Utley, --- S.W.2d ---, slip op. at 10;

Gray, 917 S.W.2d at 671; Baker, 614 S.W .2d at 354. Therefore, we must determine

whether the delay violated the defendant’s due process rights.




5

       Recently the Tennessee Supreme Court held that the issuance of an
arrest warrant is not sufficient to trigger the right to a speedy trial in Tennessee.
Demetrius Dewayne Utley, --- S.W.2d --- , slip op. at 9.

                                             4
              Our supreme court adopted the test devised by the United States

Supreme Court in Marion in State v. Baker, 614 S.W.2d 352 (Tenn. 1981).

Although, the Marion Court recognized the necessity of an ad hoc approach to such

cases, it also formulated the following test:

              (T)he Due Process Clause of the Fifth Amendment
              would require dismissal of the indictment if it were
              shown at trial that the pre-indictment delay in this case
              caused substantial prejudice to appellee’s right to a fair
              trial and that the delay was an intentional device to gain
              tactical advantage over the accused.

Marion, 404 U.S. at 324, 92 S.Ct. at 465.6 A recent formulation of the test requires

that the accused prove that (1) there was a delay, (2) the accused sustained actual

prejudice as a direct and proximate result of the delay, and (3) the state caused the

delay in order to gain tactical advantage over or to harass the accused. State v.

Dykes, 803 S.W.2d 250, 255 (Tenn. Crim. App. 1990).



              In State v. Gray, 917 S.W.2d 668 (Tenn. 1996), the Tennessee

Supreme Court recently distinguished between “pre-indictment” delay and “pre-

accusatorial delay” in a due process case. Id. at 671-673. A “pre-indictment” delay

occurs when the state knows that an offense has been committed but delays in

bringing charges against the accused. Id. at 671. A “pre-accusatorial delay” occurs

between the commission of the offense and the commencement of formal

proceedings in a case in which the state was not aware that the defendant had

committed an offense. Id. The Gray court held that the three-pronged test in Dykes

applied only to those cases in which the state had knowledge of the offense. In

6

        The Baker court remarked that this court adopted the same test in
Halquist v. State, 498 S.W.2d 88, 93 (Tenn. Crim. App. 1972) without mentioning
Marion. We note that the test adopted in Halquist states that “an unreasonable
delay between the commission of the offense and the arrest may violate the
defendant’s constitutional rights if the delay results in prejudice to him or was
part of a deliberate, purposeful and oppressive design for delay.” Halquist, 498
S.W.2d at 93 (emphasis added). Baker, and the cases that follow Baker,
substitute the conjunction “and” for the “or” in Halquist. Marion requires both
substantial prejudice and delay for the purpose of gaining tactical advantage or
for harassment. The language from Halquist is sometimes quoted verbatim
without any recognition of the variation between the prejudice standards or the
difference between “or” and “and.” See State v. Gray, 917 S.W.2d 668,
671(Tenn. 1996); State v. Dykes, 803 S.W.2d 250, 255-256 (Tenn. Crim. App.
1990); Baker, 614 S.W.2d at 354.

                                          5
those instances in which the facts of the offense have lain dormant, the court

recognized that the stringent Marion-Dykes standard “places a daunting, almost

insurmountable, burden on the accused by requiring a demonstration not only that

the delay has caused prejudice but also that the State orchestrated the delay in

order to obtain a tactical advantage.” Gray, 917 S.W.2d at 673. To prevent

unconstitutional, unfair, and unwarranted results in such cases, the court held that

in determining whether pre-accusatorial delay violates due process, the trial court

must consider the length of the delay, the reason for the delay, and the degree of

prejudice, if any, to the accused. Id.7



              To summarize, our supreme court has adopted three different

standards for determining whether a delay in prosecution warrants the dismissal of

charges:

              A.     In delays that occur between the
                     commencement of formal proceedings
                     and trial, the Sixth Amendment speedy
                     trial analysis applies, and courts must
                     balance 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 the
                     defendant was prejudiced by the delay.
                     Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
                     2182 (1972); Demetrius Dewayne Utley,
                     --- U.S. ---, slip op. at 4-5; State v. Bishop,
                     493 S.W.2d 81, 83-84 (Tenn. 1973).

              B.     In “pre-indictment” cases in which the
                     state has knowledge of the offense and
                     delays bringing formal charges against
                     the accused, due process rights may be
                     implicated. Gray, 917 S.W.2d at 671-
                     673. In these cases, the accused must
                     prove that (1) there was a delay, (2) the
                     accused sustained actual prejudice as
                     direct and proximate result of the delay,
                     and (3) the state caused the delay in
                     order to gain tactical advantage over or to
                     harass the accused. Dykes, 803 S.W.2d
                     at 256.

7

        Based on this standard, the supreme court dismissed a 1992 indictment
which charged the defendant with a single charge of carnal knowledge of a
female under the age of twelve, an offense that allegedly occurred more than
forty years earlier. Gray, 917 S.W.2d at 674.


                                           6
              C.     In “pre-accusation” cases, the state does
                     not know that the offense has been
                     committed. Gray, 917 S.W.2d at 673. To
                     determine whether a due process
                     violation exists, the trial court must
                     consider (1) the length of the delay, (2)
                     the reason for the delay, and (3) the
                     degree of prejudice, if any, to the
                     accused. Id.


              The facts in the record indicate that the Dykes factors are applicable

to this case.8 Without question, the state had knowledge of his convictions and of

the positive drug screen as well as of his failure to make regular payment of his

probation costs, fines and fees. The record clearly demonstrates that a lengthy

delay occurred. The defendant’s first violations occurred in 1993 and 1994, and he

tested positive for marijuana in August of 1995. The state did not charge him with

those violations until July of 1996. However, although the state’s lengthy delay is

troubling, the defendant has not carried his burden of demonstrating that the delay

resulted in actual prejudice and that the state caused the delay to gain tactical

advantage or to harass him.



              In determining whether a delay has violated due process, the most

critical factor is the prejudice to the accused. State v. James Webb, No. 02C01-

9512-CC-00383, slip op. at 14 (Tenn. Crim. App., Jackson, Feb. 27, 1997), perm.

8

        We note that In dismissing the indictment in Gray, the supreme court
declared that “due process is flexible and calls for such procedural protections as
the particular situation demands.” Gray, 917 S.W.2d at 673 (quoting Morrissey
v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972)). The major reason
for applying differing standards to speedy trial and due process cases is that
statutes of limitation provide the first barrier of protection against prejudice
arising from a lapse of time between the commission of a crime and an
indictment or arrest. Marion, 404 U.S. at 321-323, 92 S. Ct. at 463-464; Gray,
917 S.W.2d at 673.(Citations to other cases omitted). In Gray, the supreme
court specifically noted that the statute of limitations provided the defendant with
no protection from charges relating to events that allegedly occurred forty years
in the past. Gray, 917 S.W.2d at 673. Similarly, those accused of probation
violations receive no protection from statutes of limitations. Nothing in our
statutes requires the state to file a probation violation report within a given time
period other than the requirement that it be filed prior to the expiration of the
sentence. See Tenn. Code Ann. § 40-35-310 (Supp. 1996). Therefore, in
some instances, the less stringent standard in Gray could conceivably apply to a
probation revocation case even though the facts would ordinarily place it within
the Dykes analysis.


                                         7
app. denied (Tenn. 1997) (quoting Jones v. Greene, No. 01A01-9505-CH-00187

(Tenn. App. December 5, 1996)). W e cannot say that the delay hampered the

defendant in the presentation of his defense. The record is devoid of any evidence

of prejudice that was the “direct and proximate result of the delay.” Dykes, 803

S.W.2d at 256. The defendant does not allege that witnesses were unavailable or

that evidence was lost. See James Webb, slip op. at 14. In fact, the defendant

admitted the violations in open court. Unlike cases involving speedy trial violations,

this defendant suffered no lengthy pretrial incarceration, nor was he subjected to

public disrepute during the delay. As the state points out, he was given an

additional period of freedom, a freedom which he abused by further violating the

conditions of his probation. Absent any proof of prejudice, no further analysis is

required. State v. Baker, 614 S.W.2d 352, 353-354 (Tenn. 1981). However, we

note that there is no evidence the delay in this case was the result of anything other

than unfortunate bureaucratic inefficiency.



              In conclusion, we find that due process considerations do not require

that this court reverse the trial court’s judgment in this case. The order of the trial

court revoking the defendant’s probation and ordering him to serve one year in the

county jail and seven years in Community Corrections is affirmed.



                                                  __________________________
                                                  CURWOOD W ITT, Judge




CONCUR:



______________________________
Joe B. Jones, Presiding Judge



______________________________
Paul G. Summers, Judge




                                          8
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