             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                           June 26, 2001 Session

                   STATE OF TENNESSEE v. HARRY M. NIMMONS

                          Appeal from the Criminal Court for Knox County
                             No. 70893    Richard Baumgartner, Judge



                                       No. E2000-02396-CCA-R3-CD
                                             August 14, 2001

The state appeals from the Knox County Criminal Court’s dismissal of a three-count presentment
against the defendant, Harry M. Nimmons. The trial court premised its dismissal of the presentment
upon the lack of a preliminary hearing prior to return of the presentment, although the court found
that the lack of a preliminary hearing was not attributable to bad faith by the state. Because there
was no showing of bad faith by the state, we reverse the trial court’s order and reinstate the
presentment against the defendant.

                   Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed

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

David L. Hull, Knoxville, Tennessee, for the Appellant, Harry M. Nimmons.

Paul G. Summers, Attorney General & Reporter; Mark A. Faulks, Assistant Attorney General;
Randall E. Nichols, District Attorney General; Kevin James Allen, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                    OPINION

               The defendant was arrested on April 6, 2000 for the offenses which were later
charged in the presentment that is the subject of this appeal.1 A preliminary hearing was scheduled
on May 3, and on that date the hearing was continued to June 21. The defendant had unrelated
misdemeanor charges pending, and on June 12, his counsel was present in court when an emergency
developed which required counsel to leave the courtroom. A fellow member of the bar spoke with
an unknown assistant district attorney on defense counsel’s behalf. This member of the bar arranged


         1
         It is not clear from the record whether the defendant’s arrest was warrantless and a warrant issued later that
day or whether the arrest was pursuant to warrant. For purposes of this appeal, it makes no difference.
for the defendant’s misdemeanor cases to be continued until July 26 for “felony court.” This
member of the bar testified that he did not speak with the assistant district attorney about the felony
case. On June 21, the state appeared for the preliminary hearing in the felony case, but the defense
did not. Defense counsel assumed that because the misdemeanors were reset in “felony court” on
July 26, the felony case was likewise reset for that date, even though the member of the bar who
spoke with the state about continuing the misdemeanors did not request a continuance for the felony
case. Curiously, the felony warrant bears a notation that the case was reset two times, for June 21
and July 26. The grand jury returned the presentment in the felony case on or about June 22.

               The defendant then moved to dismiss the presentment because he had been denied
a preliminary hearing. After considering the evidence offered at a hearing on the motion, the trial
court found, “The State did not act in bad faith in this case.” Nevertheless, the court found that the
defendant, “through no fault of his own, [was] denied his fundamental right of a preliminary
hearing” and that the “spirit” of Tennessee Rule of Criminal Procedure 5(e) was such that the
defendant should not be denied that right due to a misunderstanding. Accordingly, the trial court
granted the motion to dismiss the presentment.

               In this, the state’s appeal of that ruling, the state argues that the trial court improperly
dismissed the presentment absent a showing of prosecutorial bad faith.

A.      Right to Preliminary Hearing

                An individual charged with a crime in Tennessee has a right to a preliminary hearing,
although that right derives from statute and rule, as opposed to constitutional guarantees. Moore v.
State, 578 S.W.2d 78, 80 (Tenn. 1979); see Tenn Code Ann. §§ 40-10-101 to -113 (1997)
(“Preliminary Examination”); Tenn. R. Crim. P. 5.1 (“Preliminary Examination”). The purpose of
the preliminary hearing is to determine whether probable cause exists for the charge against the
defendant. Tenn. R. Crim. P. 5.1.

                The Rules of Criminal Procedure prescribe the timing of the preliminary examination
in relation to grand jury action.

        Indictment Before Preliminary Examination – Any defendant arrested prior to
        indictment or presentment for any offense, whether misdemeanor or felony, except
        small offenses, shall be entitled to a preliminary hearing upon the defendant's request
        therefor, whether the grand jury of the county be in session or not. If the defendant
        is indicted during the period of time in which the preliminary hearing is being
        continued, or at any time before accused has been afforded a preliminary hearing on
        a warrant, whether at the defendant's own request or that of the prosecutor, the
        defendant may dismiss the indictment upon motion to the court. Provided, however,
        that [sic] no such Motion to Dismiss shall be granted after the expiration of thirty
        days from the date of the defendant's arrest.


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Tenn R. Crim. P. 5(e). The 30-day limitation on dismissal found in the last phrase of Rule 5(e) is
limited to the situation in which all parties have acted in good faith and in compliance with the
statute. Moore, 578 S.W.2d at 82. In other words, a defendant seeking dismissal outside the 30-day
period may obtain relief only if the state has acted in bad faith. See id.; see also State v. Jeffrey
Charles Middlebrook, No. 1204 (Tenn. Crim. App., Knoxville, Jan. 31, 1989) (it was defendant’s
obligation to ensure that state’s previous agreement not to seek indictment prior to preliminary
hearing would continue for another two months), perm. app. denied (Tenn. 1989).

B.     Applicability of Rule 5(e)

               At the outset, we must address the language of Rule 5(e) in the use of the words
“indictment” and “presentment.” The first sentence of subdivision (e) defines the right to
preliminary hearing prior to “indictment or presentment.” Tenn. R. Crim. P. 5(e). The second
sentence confers the right of a defendant who is “indicted” prior to a preliminary hearing to have the
“indictment” dismissed. Id. We recognize that there are significant differences in the two forms of
charging instruments. See generally State v. Jeffrey Dwight Whaley, — S.W.3d. —, No. E2000-
00646-CCA-R3-CD, slip op. at 3 (Tenn. Crim. App., Knoxville, Dec. 6, 2000), perm. app. denied
(Tenn. 2001). The state argues on appeal that the distinction between indictments and presentments
coupled with the absence of the word “presentment” in the second sentence of Rule 5(e) supports
a conclusion that “a presentment cannot be dismissed for any reason when a criminal defendant is
denied a preliminary hearing, even if the presentment is returned during the pendency of the
preliminary hearing.” In other words, a defendant against whom a presentment is returned prior to
preliminary hearing has no remedy under Rule 5(e).

               For purposes of this appeal, it is unnecessary that we resolve the question whether
Rule 5(e) affords the defendant a remedy in cases in which a presentment is returned prior to the
preliminary hearing. The trial court found that there was no bad faith in this case, and for the reasons
discussed below, we are not convinced otherwise upon appellate review. Whether Rule 5(e) does
not apply, as advanced by the state, or whether Rule 5(e) and its corresponding bad faith analysis
do apply, as advanced by the defendant, this case is not one in which the defendant is entitled to
relief. Therefore, we need not resolve whether Rule 5(e) applies to cases in which a presentment is
returned before the preliminary hearing.

C.      Existence of Bad Faith

              We therefore turn to the question of the result assuming Rule 5(e) applies. Because
more than 30 days had elapsed between the defendant’s arrest and the return of the presentment, the
question is whether bad faith attended the presentment’s return. See Moore, 578 S.W.2d at 82.

                In that regard, the evidence does not demonstrate that the presentment’s return and
the timing of the return were precipitated by bad faith on the part of the prosecution. The trial court
correctly so found, and on appeal, the evidence does not compel us to disturb that finding. See
Whaley, slip op. at 5. Notwithstanding that finding, however, the court reached an incorrect

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conclusion of law that we must displace. The court believed that it had the authority to dismiss the
presentment short of a bad-faith showing. As discussed above, it did not. See Moore, 578 S.W.2d
at 82.

               Accordingly, we reverse the trial court’s dismissal of the presentment and reinstate
the charging instrument.



                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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