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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
May 18, 2010 Session STATE OF TENNESSEE v. STEPHEN JAMES THOMPSON
Appeal from the Circuit Court for Maury County No. 18362 Allen W. Wallace, Senior Judge

No. M2009-02122-CCA-R3-CD - Filed August 25, 2010

The State appeals the trial court's dismissal of the charge of driving under the influence ("DUI") against Appellee, Stephen James Thompson. The trial court dismissed the charge after finding that the statute of limitations had expired before the Maury County Grand Jury indicted Appellee. On appeal, we determine that the trial court improperly dismissed the charges because Appellee waived his preliminary hearing and agreed to allow the case to be bound over to the grand jury prior to the expiration of the statute of limitations. Therefore, the judgment of the trial court is reversed and remanded for reinstatement of the indictment against Appellee for DUI. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and Remanded. J ERRY L. S MITH, J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBERT W. W EDEMEYER, JJ., J OINED. Robert E. Cooper, Jr., Attorney General and Reporter, Lacy Wilber, Assistant Attorney General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee. J. Russell Parkes and Charles M. Molder, Columbia, Tennessee for the appellee, Stephen James Thompson. OPINION Factual Background Appellee was involved in a car accident on September 28, 2007. Appellee was injured in the accident, so the responding officer, Trooper Jon W. Judge, was unable to perform field sobriety tests on Appellee even though Trooper Judge suspected that Appellee was driving

under the influence. At the time of the accident, Appellee was charged with failure to give immediate notice of the accident, leaving the scene of an accident involving injury, driving on an expired license, failure to provide proof of insurance, and violation of the open container law. On January 28, 2008, Trooper Judge executed an affidavit of complaint against Appellee alleging that he was driving under the influence at the time of the accident. The complaint does not appear to have been signed by a judge, magistrate, or Appellee. Appellee subsequently made four appearances in court on February 7, 2008; March 20, 2008; April 7, 2008; and June 12, 2008, related to the charges stemming from the accident. Appellee was represented by counsel. Subsequently, on July 24, 2008, Appellee waived his right to a preliminary hearing and agreed to allow the case to be bound over to the grand jury. The Grand Jury of Maury County indicted Appellee on October 3, 2008. On January 6, 2009, Appellee filed a motion for arraignment, waived personal appearance, and requested that the trial court enter a not guilty plea. Appellant filed a motion to dismiss the DUI charge due to the running of the statute of limitations on August 25, 2009. The trial court granted the motion and dismissed the DUI charge on the basis that the statute of limitations expired prior to the issuance of the indictment. The State has appealed. Analysis On appeal, the State argues that the trial court "erred when it concluded that the statute of limitations had run before the State commenced prosecution." Specifically, the State contends that the trial court improperly dismissed the indictment where Appellee waived his preliminary hearing and agreed to have the case bound over to the grand jury prior to the expiration of the one-year statute of limitations. Appellee disagrees, relying on State v. Ferrante, 269 S.W.3d 908, 914 (Tenn. 2008). Appellee argues that the underlying affidavit of complaint was void ab initio because it was not signed by a clerk, judge, or magistrate and was never served on Appellee. Therefore, according to Appellee, the State failed to commence prosecution pursuant to "one of the statutory vehicles found in [Tennessee Code Annotated section] 40-2-104" and the trial court properly dismissed the indictment. DUI is a Class A misdemeanor. See T.C.A.

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