State v. Ferrante

Decision Date28 October 2008
Docket NumberNo. E2007-00180-SC-R11-CD.,E2007-00180-SC-R11-CD.
Citation269 S.W.3d 908
PartiesSTATE of Tennessee v. Roy Anthony FERRANTE.
CourtTennessee Supreme Court

Steven Oberman, Sara Compher-Rice, and Richard L. Gaines, Knoxville, for the appellant, Roy Anthony Ferrante.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie E. Price, Assistant Attorney General; Steven R. Bebb, District Attorney General; and Michelle McFadyen, Assistant District Attorney General, for the appellee, State of Tennessee.


CORNELIA A. CLARK, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., and WILLIAM M. BARKER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.

We granted permission to appeal to determine whether a criminal defendant's appearance in court is sufficient to commence a prosecution for purposes of tolling the statute of limitations where the purported charging instrument is void ab initio. We hold that a defendant's appearance in court following the issuance of an affidavit of complaint that is void from inception does not toll the running of the statute of limitations. The fatal deficiencies in the affidavit of complaint in this case were not overcome until after the limitations period had expired. Accordingly, the Defendant's motion to dismiss the charge against him in this case must be granted. The judgment of the Court of Criminal Appeals reinstating the charge against the Defendant is reversed, and the charge against the Defendant is dismissed.


On August 15, 2004, Bradley County Sheriff's Deputy John Cochran arrested the Defendant, Roy Anthony Ferrante, for driving under the influence of an intoxicant ("DUI") after Deputy Cochran observed the Defendant's vehicle swerving over the white line. Because the Defendant consented to a blood draw, Deputy Cochran transported him first to "Bradley ER" and then to the Bradley County Justice Center. That same day, Deputy Cochran swore out his affidavit of complaint before Deputy Clerk Norma Hodgson, and they both signed it. The State has conceded that Deputy Clerk Hodgson was not capable of making a probable cause determination at the time she signed Deputy Cochran's affidavit of complaint against the Defendant.2

The next day, August 16, 2004, the Defendant appeared in Bradley County General Sessions Court. The judge read the affidavit of complaint and determined that it sufficiently stated probable cause when he arraigned the Defendant.3 The record does not contain a transcript of the Defendant's arraignment. The judge did not sign the affidavit of complaint, issue a warrant for the Defendant's arrest, or issue a summons for the Defendant's appearance.

The Defendant and/or his counsel subsequently appeared in general sessions court "on dates set for preliminary hearing." It appears that the case was continued at each of these appearances.4 The record contains no documents generated by or in conjunction with any of these appearances.

On August 23, 2005, over one year after his arrest, the Defendant filed a motion asking the general sessions court to dismiss the DUI charge on the basis that the "arrest warrant" was void because Deputy Clerk Hodgson, who signed the affidavit of complaint, "was not capable of making the probable cause determination."5 The Defendant argued his motion to the general sessions judge in September 2005. The judge denied the Defendant's motion to dismiss.

In conjunction with denying the Defendant's motion in September 2005, the general sessions judge had Deputy Cochran reexecute the affidavit of complaint under oath. The judge then conducted the preliminary hearing, determined the existence of probable cause, and signed and issued an arrest warrant. The Defendant was bound over to the grand jury and subsequently indicted on two alternative charges of a single DUI offense.

The Defendant appealed from the general sessions court's denial of his motion to dismiss. The Defendant argued to the criminal court that the affidavit of complaint was void ab initio and could not be cured by the September 2005 actions of the general sessions judge because those actions occurred after the one-year statute of limitations had run.6 After hearing argument by counsel for the Defendant and the State, the criminal court agreed with the Defendant and dismissed the charge.7 The State appealed to the Court of Criminal Appeals. The intermediate appellate court reversed the criminal court and reinstated the charge. We granted the Defendant's application for permission to appeal.


The facts of this case are not in dispute. Rather, our disposition of this case rests on our construction of certain statutes and rules of procedure. We review issues of statutory construction de novo with no presumption of correctness attaching to the rulings of the courts below. State v. Edmondson, 231 S.W.3d 925, 927 (Tenn.2007). The same standard of review applies to our interpretation of Tennessee's Rules of Criminal Procedure. See Green v. Moore, 101 S.W.3d 415, 418 (Tenn.2003).

Applicable Statute of Limitations

The DUI offense for which the Defendant was arrested is a misdemeanor. Tenn.Code Ann. §§ 55-10-403(a)(1) (2004); 39-11-110 (2003). The period within which prosecution must commence for this misdemeanor offense is one year. Id. § 40-2-102(a) (2003); see State v. Messamore, 937 S.W.2d 916, 918 (Tenn.1996). As our Court of Criminal Appeals has recognized, the statute of limitations applies to the period elapsing between the commission of the offense and the date that prosecution begins. State ex rel. Lewis v. State, 1 Tenn.Crim.App. 535, 447 S.W.2d 42, 43 (Tenn.Crim.App.1969). "The purpose of a statute of limitations is to protect a defendant against delay and the use of stale evidence and to provide an incentive for efficient prosecutorial action in criminal cases." State v. Nielsen, 44 S.W.3d 496, 499 (Tenn.2001). This Court construes statutes of limitation liberally in favor of the criminally accused. State v. Henry, 834 S.W.2d 273, 276 (Tenn.1992) (citing United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)).

It is undisputed in this case that the date of the alleged offense is August 15, 2004. Absent tolling, the statutory limitations period therefore expired on August 14, 2005, a few days before the Defendant filed his motion to dismiss. This case requires us to determine whether the State commenced its prosecution against the Defendant before the limitations period expired.

Commencement of Prosecution

Tennessee Code Annotated section 40-2-104 provides that

[a] prosecution is commenced, within the meaning of this chapter [titled Limitation of Prosecutions], by finding an indictment or presentment, the issuing of a warrant, binding over the offender, by the filing of an information ..., or by making an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense.

Tenn.Code Ann. § 40-2-104 (2003) (emphasis added). It appears that the State attempted to commence its prosecution in this case by issuing the affidavit of complaint, as the record contains no other document issued at or around the time of the Defendant's arrest.

Applicable Rules of Criminal Procedure8

The Defendant does not contest the legality of his initial warrantless arrest. Rather, he contests the validity of the State's subsequent actions in light of the requirements of our Rules of Criminal Procedure, which "govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee," Tenn. R.Crim. P. 1, and, additionally, "govern procedure in the General Sessions Courts of the state to the extent of: (a) [t]he institution of criminal proceedings pursuant to Rules 3, 3.5, and 4; [and] (b) [t]he disposition of criminal charges pursuant to Rule 5," Tenn. R.Crim. P. 1(a)-(b).

When a person is arrested without a warrant, he "shall be taken without unnecessary delay before the nearest appropriate magistrate," and "an affidavit of complaint shall be filed forthwith." Tenn. R.Crim. P. 5(a). Indeed, this Court has determined that Rule 5(a) "clearly contemplates" that a person arrested without a warrant will "be taken before a magistrate so that formal charges can be lodged against them by the filing of an affidavit of complaint." State v. Best, 614 S.W.2d 791, 795 (Tenn.1981) (emphasis added).

Tennessee Rule of Criminal Procedure 3 addresses affidavits of complaint and provides as follows:

The affidavit of complaint is a written statement alleging that a person has committed an offense and alleging the essential facts constituting the offense charged. The affidavit of complaint shall be made upon oath before a magistrate or a neutral and detached court clerk who is capable of the probable cause determination required by Rule 4.

Tenn. R.Crim. P. 3 (emphases added). As explained by the Advisory Commission Comments to Rule 3:

This rule governs what must be done to secure the issuance of an arrest warrant ... It is important that any clerk issuing an arrest warrant know and fully appreciate the legal significance of the fact that it is a judicial function which is being performed. The validity of the warrant depends upon the making of a probable cause determination; a warrant must never be issued as a mere ministerial act done simply upon application. Moreover, a valid warrant can be issued only by one who is neutral and detached and capable of making a probable cause determination.

Tenn. R.Crim. P. 3, Advisory Comm'n Cmts. (emphases added). Thus, a probable cause determination is a necessary prerequisite to the issuance of a valid warrant.

Tennessee Rule of Criminal Procedure 4 sets forth the requisites for the issuance of a warrant:

If it appears from the...

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