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State v. Hosford6/4/1999
a critical stage of a criminal prosecution mandated by statutory law. Moore v. State, 578 S.W. 2d 78, 80 (Tenn. 1979); Waugh v. State, 564 S.W. 2d 654, 659 (Tenn. 1978). The primary function of a preliminary hearing is to determine whether probable cause exists to believe that the accused committed the offense charged, and to fix the amount of bail for bailable offenses. Tenn. R. Crim. P. 5.1; State v. D'Anna, 506 S.W. 2d 200, 203 (Tenn. Crim. App. 1973). It is also fundamental that motions to suppress illegally seized evidence are appropriate at the preliminary hearing. State v. Golden, 941 S.W. 2d 905, 907 (Tenn. Crim. App. 1996).
Rule 5(e) of the Tennessee Rules of Criminal Procedure provides as follows:
"Any defendant arrested prior to indictment or presentment for any offense . . . shall be entitled to a preliminary hearing upon his request therefor, whether the grand jury of the county be in session or not. If the defendant is indicted during the period of time in which his preliminary hearing is being continued, or at any time before the accused has been afforded a preliminary hearing on a warrant, whether at his own request or that of the prosecutor, he may dismiss the indictment upon motion to the court. Provided, however, that no such Motion to Dismiss shall be granted after the expiration of thirty days from the date of defendant's arrest."
The Tennessee Supreme Court in Moore v. State, 578 S.W. 2d 78, 82 (Tenn. 1979), created an exception to the thirty day rule, holding that:
" he thirty-day limitation . . . is applicable only when all parties - "including the defendant, who must act promptly-have acted in good faith and in compliance with the statute. The failure of the court or the prosecution to exercise good faith and to abide the law operates to toll the statute and preclude its invocation."
Thus, the question central to our review is whether the state or the general sessions court acted in "bad faith" to deprive the appellee of her right to a preliminary hearing.
Although the record is sketchy, it is clear that all of the continuances sought in the general sessions court were at the request of the prosecution (apparently to avoid dismissal when the prosecuting officer did not appear) or the court itself (to accommodate the court's schedule). In this case the defendant flew from out of state and appeared in court on two or more occasions ready and able to proceed with the preliminary hearing she had requested. The state's prosecuting witness failed to appear on two occasions. On January 14, 1998, the general sessions Judge actually began the hearing, but recessed before completion because of a prior personal commitment. The state apparently made no objection when the Judge announced he had to leave early, and agreed to the proposed new date. To allow the state to benefit from the thirty-day provision of Rule 5(e) because its prosecuting witness failed to appear, or because the Judge recessed the hearing before its completion, does not "abide the law" nor serve the ends of Justice. Accordingly, although the actions may not have originated from malicious intent, they are deemed to be in "bad faith" sufficient to preclude the invocation of the thirty-day rule. Golden, 941 S.W. 2d at 908.
For the reasons stated above, we modify the judgment of the trial court, and dismiss the indictment.
CORNELIA A. CLARK SPECIAL JUDGE
GARY R. WADE JUDGE NORMA M. OGLE JUDGE
JUDGMENT
Came the appellant, the State of Tennessee, represented by the Attorney General's office and also came the attorney of record for appellee, Anne K. Hosford, and this case was heard on the recor
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