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State v. Grieco

Court of Criminal Appeals of Tennessee, Knoxville

March 10, 2017

STATE OF TENNESSEE
v.
LOUIS GRIECO

          Session May 17, 2016

         Appeal from the Criminal Court for Sullivan County No. S64288 James F. Goodwin, Judge

         Defendant, Louis Grieco, was arrested on August 24, 2013, without a warrant for driving under the influence (DUI). On the date of the arrest, the arresting officer summarized the facts underlying the offense in an affidavit of complaint, which he signed under oath before a notary public. Two days later, a general sessions judge found probable cause that the offense was committed based on the officer's affidavit of complaint. Over one year later, on October 6, 2014, Defendant waived his right to a preliminary hearing in General Sessions Court and agreed to have the case bound over to the Sullivan County Grand Jury. The grand jury indicted Defendant for DUI on January 21, 2015. Defendant filed a motion to dismiss the indictment as time barred, arguing that the affidavit of complaint was void because the officer did not make it on oath in the presence of an authorized official capable of making a probable cause determination. The trial court granted Defendant's motion to dismiss. The State appeals. Following our review, we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant Attorney General; Barry Staubus, District Attorney General; and Jason White, Assistant District Attorney General, for the appellant, State of Tennessee.

          Lanny R. Norris, Elizabethton, Tennessee, for the appellee, Louis Grieco.

          Thomas T. Woodall, P.J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Factual background

         On August 24, 2013, Officer Jeff Boling, of the Bristol Police Department, conducted a traffic stop of Defendant's vehicle. Officer Boling stated in an affidavit of complaint he prepared that he observed Defendant's vehicle crossing into other lanes. He stated that Defendant had "glossy eyes and slurred speech." Officer Boling stated that Defendant performed poorly on several field sobriety tests. Defendant was arrested, and he consented to a blood alcohol test. On the date of the offense, Officer Boling signed the affidavit of complaint under oath before a notary public. On August 26, 2013, a Sullivan County General Sessions Court judge determined that probable cause existed to believe that Defendant committed the offense. The judge did not indicate whether an arrest warrant or criminal summons should issue, and there is no arrest warrant in the record.

         On October 6, 2014, while represented by an attorney, Defendant waived a preliminary hearing and agreed to have his case bound over to the Sullivan County Grand Jury. On January 21, 2015, the grand jury indicted Defendant for DUI. Defendant filed a motion to dismiss the charge, asserting that the affidavit of complaint did not comply with Rule 3 of the Tennessee Rules of Criminal Procedure because the officer did not make it on oath in the presence of an authorized official capable of making a probable cause determination. The trial court granted Defendant's motion, finding that the affidavit of complaint was sworn before a notary public and ruling that the affidavit of complaint and resulting "warrant" were void. The court concluded that the prosecution was not commenced within the time allowed by the statute of limitations.

         Analysis

         The State contends that the trial court erred by concluding that the affidavit of complaint and/or the resulting arrest warrant were void. The State argues that the lack of the officer's physical presence for a sworn examination by the deputy clerk who made the probable cause determination had no impact on the reliability or adequacy of the notarized affidavit.

         We first want to point out that the State, and apparently the trial court and Defendant, have the mistaken belief that the document which includes the affidavit of complaint, a portion headed "Probable Cause Determination, " the waivers and "Judgment" is an arrest ...


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