                      IN THE COURT OF CRIMINAL APPEALS

                                     AT JACKSON                          FILED
                                 JULY 1998 SESSION
                                                                         November 6, 1998

                                                                         Cecil Crowson, Jr.
                                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                         )
                                            )      C.C.A. No. 02C01-9707-CC-00277
              Appellee,                     )
                                            )      MADISON COUNTY
VS.                                         )
                                            )      HON. WHIT LAFON,
JOHN EDWARD CLARK,                          )      JUDGE
                                            )
              Appellant.                    )      (Attempted Aggravated Robbery,
                                            )       Vandalism)



                               CONCURRING OPINION


       I concur in the excellent opinion by Judge Witt. Although this reversal is not

based upon an issue presented for our review, this Court has an affirmative obligation

in all cases to “consider whether the trial and appellate court have jurisdiction over the

subject matter, whether or nor presented for review.” Tenn. R. App. P. 13(b).

       Nevertheless, it is regrettable that this Court must at this juncture in the criminal

proceedings declare the indictment void. Obviously, the indictment was seriously

flawed; however, there was no pretrial motion alleging a defect in the indictment. The

sufficiency of the indictment was first raised during trial when defense counsel advised

the court that he did not have a copy of the indictment until the lunch hour. Defense

counsel then orally moved to dismiss the indictment since it did not name a victim and

merely stated the legal conclusion that an attempted aggravated robbery had been

committed. The trial court overruled the motion noting its frustration that defense

counsel had not read the indictment prior to trial.

       Had this issue been properly considered before trial, the time and expense of

a trial and this appellate proceeding may well have been avoided. Nevertheless, it

becomes our responsibility in light of Hill and Ruff to declare the indictment void.
      In light of the Tennessee Supreme Court’s pronouncements in Hill and Ruff,

trial courts, prosecutors and defense counsel should be more aware of the importance

of properly drafted indictments.




                                               ______________________________
                                               JOE G. RILEY, JUDGE




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