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State v. Gastineau12/14/2005
e #1) (statement of Senator Gilbert). The fact that (a)(4) requires an implied consent law violation to be "charged" by a warrant or citation demonstrates to us that the State still must initiate the action against a defendant and that a trial court cannot sua sponte find a defendant guilty of violating the implied consent law. See also State v. Collins, 166 S.W.3d 721, 728 (Tenn. 2005) (stating in an implied consent case that "the State may seek to suspend Collins' driver's license, but that the State may not seek a suspension of greater than one year").
Having found that the State must charge a defendant with the offense, we note that the trial court in the instant case determined that the affidavit of complaint was itself the charging instrument, noting that "the affidavit of complaint was filed in this court jacket. It's filed. It's part of our court system." The appellant argued to the trial court that the affidavit of complaint, standing alone, did not provide him with formal notice that he was being charged with the offense. We agree. Tennessee Rule of Criminal Procedure 3 provides that an affidavit of complaint "is a written statement alleging that a person has committed an offense and alleging the essential facts constituting the offense charged." "If it appears from the affidavit of complaint or supporting affidavits filed with the affidavit of complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall be issued." Tenn. R. Crim. P. 4(a). An arrest warrant "serves a dual function, first, as the authority for an arrest . . . and, secondly, as a statement of the charge which the accused is called upon to answer." Tenn. R. Crim. P. 4, Advisory Commission Comments. Based upon the facts alleged in the affidavit of complaint and any supporting affidavits, a warrant may or may not be issued. Therefore, an affidavit of complaint will not necessarily provide a defendant with notice that he is being charged with an offense, and an affidavit of complaint, with nothing more to provide a defendant with notice, is not a charging instrument.
III. Conclusion
Based upon the record and the parties' briefs, we reverse the trial court's finding that the appellant violated the implied consent law and the revocation of the appellant's driver's license. We also note that the judgment of conviction for reckless driving shows that the appellant was to receive judicial diversion as part of his sentence. However, the trial court did not mention judicial diversion at the sentencing hearing. Generally, when there is a conflict between the judgment of conviction and the transcript of the proceedings, the transcript controls. See State v. Davis, 706 S.W.2d 96, 97 (Tenn. Crim. App. 1985). Therefore, we remand the case to the trial court in order for it to clarify on the record whether the appellant should receive judicial diversion for the reckless driving conviction.
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