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State v. Welch

Court of Criminal Appeals of Tennessee, Knoxville

May 23, 2019

STATE OF TENNESSEE
v.
PAUL THOMAS WELCH, JR.

          Session February 26, 2019

          Appeal from the Criminal Court for Monroe County No. 17166 Sandra Donaghy, Judge

         The State appeals the Monroe County Criminal Court's dismissal of the charge of vehicular assault by intoxication against the defendant, Paul Thomas Welch, Jr. Because the trial court erred by dismissing the charge, we vacate the trial court's order, reinstate the indictment charging the defendant with vehicular assault by intoxication, and remand the case for further proceedings consistent with our opinion.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Stephen D. Crump, District Attorney General; and Ashley Ervin, Assistant District Attorney General, for the appellant, State of Tennessee.

          Robert L. Jolley, Jr. (at hearing and on appeal), and Emma M. Steel (on appeal), Knoxville, Tennessee, for appellee, Paul Thomas Welch, Jr.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         In June 2017, the Monroe County Grand Jury charged the defendant with one count each of vehicular assault by intoxication, driving a motor vehicle without a valid driver's license, and violating the financial responsibility law. The grand jury returned a no true bill for four additional charges, including a charge of driving under the influence ("DUI").

         Following the return of the indictment, the defendant moved the trial court to dismiss the charge of vehicular assault on grounds that the grand jury's refusal to charge him with DUI precluded an indictment for vehicular assault by intoxication. At the June 18, 2018 hearing on his motion, the defendant argued that, because DUI is a lesser-included offense of vehicular assault by intoxication and because the grand jury had returned a no true bill when presented with a DUI charge, the vehicular assault charge should be dismissed. The State agreed that DUI is a lesser-included offense of vehicular assault by intoxication but argued that the grand jury's returning a no true bill on the DUI charge did not preclude the State from pursuing the indictment for vehicular assault. The trial court agreed with the defendant and dismissed the vehicular assault charge, stating that the dismissal was without prejudice and that the vehicular assault charge "maybe could be rebrought if it's still within the statute of limitations." In its written order granting the defendant's motion to dismiss, the trial court reasoned:

Since the Grand Jury deliberations are all done outside the purview of the District Attorney's Office, the decision to no bill the DUI charge and the deliberations involved are unknown to this Court. Since a DUI is a lesser-included of Vehicular Assault, Count 1 of Vehicular Assault must be dismissed.

         In this timely State appeal, the State argues that the trial court erred by dismissing the vehicular assault charge. The defendant contends that the State has no right of direct appeal on this matter and that the trial court did not err by dismissing the charge.

         The State filed a notice of appeal pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, which provides a right of appeal to the State when, among other things, "an order or judgment entered by a trial court" has "the substantive effect of . . . dismissing an indictment, information, or complaint." Tenn. R. App. P. 3(c). "When a statute affords a state or the United States the right to an appeal in a criminal proceeding, the statute will be strictly construed to apply only to the circumstances defined in the statute." State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008) (citing Carroll v. United States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397, 400 (Tenn. 2002) superseded by statute on other grounds as recognized in State v. Rowland, 520 S.W.3d 542 (Tenn. 2017)).

         As indicated, the defendant asserts that the State has no appeal as of right flowing from the trial court's order because the order did not result in the dismissal of the entire indictment in this case. Contrary to the defendant's assertion, however, it has always been the law in this state that "each count" of a multiple-count indictment "is a separate indictment." Wiggins v. State, 498 S.W.2d 92 (Tenn. 1973); see also State v.Lea, 41 Tenn. 175, 177-78 (1860) ("Each count must be a complete indictment within itself, charging all the facts and circumstances that make the crime."). Because, in this case, the ...


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