Dearborne v. State

• Decision Date: 28 August 1978
• Citation: 575 S.W.2d 259,4 A.L.R.4th 138
• Parties: Edward A. DEARBORNE, Petitioner, v. STATE of Tennessee, Respondent.
• Court: Tennessee Supreme Court

Page 259

575 S.W.2d 259

4 A.L.R.4th 138

Edward A. DEARBORNE, Petitioner, v. STATE of Tennessee, Respondent.

Supreme Court of Tennessee.

Aug. 28, 1978.

Rehearing Denied Oct. 9, 1978.

Robert E. Burch, White, Regen & Burch, Dickson, for petitioner.

Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Robert L. DeLaney, Asst. Attys. Gen., Nashville, W. B. Lockert, Jr., Dist. Atty. Gen., Ashland City, J. Kenneth Atkins, Asst. Dist. Atty. Gen., Dickson, for respondent.

OPINION

HENRY, Chief Justice.

In this criminal action, wherein we have granted certiorari to the Court of Criminal Appeals, we attempt to clarify the practice and procedure governing the availability of the common law writ of certiorari (1) to review the interlocutory action of the Court of Criminal Appeals in declining to entertain the common law writ to a trial court and (2) its availability in any appellate court to review the action of a trial court in an interlocutory holding.

I. History of the Lawsuit

Petitioner made a pre-indictment application to the District Attorney General for pre-trial diversion pursuant to § 40-2105, et seq., T.C.A. Upon its denial, a petition for certiorari was filed pursuant to § 40-2108, T.C.A. When that petition was denied by the trial court, petitioner prayed for and was granted an appeal to the Court of Criminal Appeals.

The State moved to dismiss the appeal, contending that it was interlocutory and that such appeals do not lie in criminal cases. The Court of Criminal Appeals sustained the State's motion; however, it entered an order "treat(ing) the pleadings as a petition for certiorari" and setting the case for hearing before another panel of that Court.

Thereafter, a second panel of the Court of Criminal Appeals held that "certiorari was improvidently granted (there being) no provision in the statutes of this state for an appellate review for an Interlocutory Order entered in a criminal case."

The petitioner then presented his petition for the common law writ to this Court and assigned errors allegedly committed by the Court of Criminal Appeals. Thus, we have a petition for common law certiorari to the Court of Criminal Appeals to review the action of that Court in denying the common law writ.

II.

May the Supreme Court Entertain Petition for Common Law Writ

to Review the Denial of the Common Law Writ

This precise question came before this Court in Cole v. State, 223 Tenn. 20, 442 S.W.2d 246 (1969). There the trial Court overruled a plea in abatement to the indictments and petitioner sought review by petition for certiorari filed in the Court of Criminal Appeals. That Court denied the writ; whereupon, petitioner filed his petition in this Court for the common law writ. Mr. Justice Humphreys wrote for a unanimous court:

While it is true as argued the writ of certiorari inheres in our common law system and has constitutional protection and sanction, Tennessee Constitution, Article 6, § 10; Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870; Clements v. Roberts, 144 Tenn. 129, 230 S.W. 30, it is also fundamental that the jurisdiction of this Court is what the legislature declares it to be. Tennessee Constitution, Article 6, § 2; Hundhausen v. U. S. Marine Fire Ins. Co., 52 Tenn. 702, 703; Chattanooga v. Keith, 115 Tenn. 588, 94 S.W. 62; Memphis Street R. Co. v. Byrne, 119 Tenn. 278, 104 S.W. 460. So that while the common law and constitutional power of certiorari inheres in this Court at the common law and resides here under the Constitution, it must be exercised in accordance with the legislative mandate as long as that mandate does not frustrate and render impotent the constitutional purpose and function of this Supreme Court.

With respect to this the legislature has by T.C.A. § 16-451, provided that judgments of the Court of Criminal Appeals are final judgments which may be reviewed by this Court only by certiorari. (T.C.A. § 16-451), and (T.C.A. § 16-452). No provision is made for this Court to review interlocutory orders of the Court of Appeals made with reference to interlocutory orders of a trial court. (Footnotes omitted.) 223 Tenn. at 22-23, 442 S.W.2d at 247.

Had there been no further pronouncements this would have settled the law. However, three years later the Court, without even alluding to Cole, reached a contrary conclusion in State v. Dougherty, 483 S.W.2d 90 (Tenn.1972). The procedural background was that the trial judge had granted the defendant's motion for the discovery of certain evidence. The State sought review in the Court of Criminal Appeals by common law writ. When the Court of Criminal Appeals denied the writ, a petition was filed in this Court. The defendant moved to dismiss "on the ground this Court has no jurisdiction to review an interlocutory order of the Court of Criminal Appeals." 483 S.W.2d at 91-92. Responding to this insistence, the Court said:

However, we are of the opinion the Court of Criminal Appeals acted arbitrarily and illegally in dismissing the petition.

Therefore, the writ of certiorari issuing herein is referable to T.C.A. Section 27-801 which authorizes that writ in cases where an inferior tribunal "has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy." (Citations omitted.) 483 S.W.2d at 92.

The Court, accordingly, granted certiorari and remanded to the Court of Criminal Appeals.

If this case left any doubt that the Court had departed from Cole, it was removed by our recent opinion in Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). There a defendant, who had undergone a criminal trial at the conclusion of which the trial court had declared a mistrial, filed a motion seeking a judgment of not guilty based upon his insistence as to the meaning and effect of the jury verdict.

The trial judge denied the motion. Whitwell filed his petition for the common law writ in the Court of Criminal Appeals, where a divided court held "that the writ of certiorari is not available to review said order of the trial judge; that the trial judge was not acting illegally, nor beyond his jurisdiction." 520 S.W.2d at 341.

We granted certiorari, reversed the Court of Criminal Appeals and remanded to the trial court for the entry of a judgment dismissing all charges. Our holding that the trial court was guilty of a "fundamental illegality," was based largely on McGee v. State, 207 Tenn. 431, 340 S.W.2d 904 (1960).

It is apparent from these two cases that Cole v. State should no longer be considered to be authoritative. Where the conditions of the statute (§ 27-801), as construed by our decisional law, are met, this Court has the discretion to entertain a petition for the common law writ to review the action of the Court of Criminal Appeals in granting or denying such a writ.

III. Approved Practice

Notwithstanding the above conclusions, we think the proper practice is to petition the Court of Criminal Appeals for the writ and, upon its denial, to petition this Court for the writ, assigning as error the Action of the trial court, and reciting fully the fact of the filing of the former petition and the action taken thereon by the Court of Criminal Appeals.

The procedure is governed by Rule 10 of this Court and we emphasize that all petitions for the common law writ must be "accompanied by an assignment of errors and a brief (conforming to Rules 14 and 15) and a certified transcript of the record."

The phrase "certified transcript of the record", as used in this rule means (a) the technical record certified by the Clerk and (b) a transcript of the testimony certified by the court reporter or agreed upon by counsel. The solemnities surrounding a Bill of Exceptions have no application. In the event of a controversy between counsel as to the accuracy of the transcript so certified, the conflict will be resolved by the trial judge.

Certiorari is not a writ of right. To invoke the discretionary jurisdiction of this Court, there must be strict compliance with these rules.

IV. Pre-trial Diversion

In our recent case of Pace v. State, 566 S.W.2d 861 (Tenn.1978), we upheld the constitutionality of our pre-trial diversion statutes, § 40-2105, T.C.A.

Implicit in that holding and self-evident from the statutes is the notion that they create a Statewide statutory scheme for the diversion of certain classes of offenders from the normal criminal process.

The judgment entered in this case in the trial court recites in pertinent part:

That Attorney General's office has no facilities within said office to enforce the provisions of T.C.A. § 40-2105.

That the provisions of T.C.A. § 40-2105 cannot be implemented in Dickson County through existing facilities.

That the defendant is qualified for the program and should be granted pre-trial diversion if the facilities were available.

The judgment shows on its face that petitioner is not being given the benefit of the "law of the land" provision of our state constitution, Article I, Sec. 8. This provision is synonymous with the "due process" clause of the Fifth and Fourteenth Amendments to the Constitution of the United States. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739 (1965).

This conclusion, however, assumes the applicability of our pre-trial diversion statutes, Prior to indictment. This determination requires an analysis of the statute in the light of our historic concept of separation of powers and forces us to focus upon the nature of the office of District Attorney General. The concurring opinion in Pace discusses this matter in some detail and concludes that "the District Attorney General is an officer of the executive department." 566 S.W.2d at 866. It further focuses on the nature of the prosecutorial discretion vested in the District Attorney General. In this regard the concurring opinion reads as follows:

He or she is answerable to no superior and has virtually unbridled discretion in determining whether to prosecute and...