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State v. Swords4/14/1999
The Defendant, Phillip Todd Swords, appeals as of right from his conviction for third offense DUI in the Criminal Court for Hamilton County. In this appeal, he asserts two primary claims: (1) that he was denied liberty without due process as a result of deficiencies in the customary arrest and bail procedures in Hamilton County, and (2) that the trial court erred by enhancing the conviction at bar due to two prior DUI convictions that Defendant argues are facially invalid. We affirm the decision of the trial court.
I. DUE PROCESS
To support his argument that he was denied due process of law, Defendant directs our attention to four alleged violations: (1) that he was denied the right to be taken before a magistrate or Judge at the time of his arrest, (2) that he was denied the right to have an arrest warrant issued by a neutral and detached magistrate, (3) that the procedures for setting bail do not conform to the Release from Custody and Bail Act, and (4) that he was punished without due process by being detained in the Hamilton County Jail for at least six hours after being booked.
A. Appearance Before a Magistrate
According to Defendant, the procedure by which a probable cause determination was made following his warrantless arrest by police failed to "serve as a protection against unfounded interference with liberty" and failed to "`provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty.'" Defendant's Brief (quoting Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975)). Defendant correctly maintains that he should have been brought before a magistrate "without unnecessary delay" following his arrest. See Tenn. R. Crim. P. 5; Tenn. Code Ann. § 55-10-203. Furthermore, as Defendant insists, the magistrate should have informed him at this appearance of the nature of the charges against him, as well as his right to counsel during the proceedings. See Tenn. Code Ann. § 40-10-101.
Defendant testified that he received no opportunity to appear before a magistrate or Judge on the morning of his arrest. Moreover, a deputy clerk from the Hamilton County Clerk's office explained the usual procedure for those defendants arrested overnight without a warrant: The arresting officer delivers a recitation of probable cause to a deputy clerk, who then grants the warrant and sets bail for the defendant as a matter of course. Customarily, she testified, the accused is seated elsewhere and does not appear before or provide facts to the deputy clerk, just as happened in this case.
Defendant clearly did not receive the proper hearing before a judicial officer, nor was he apprised by such an officer of the nature of the charges against him or of his right to counsel. However, Defendant is not entitled to a remedy in this Court. The Tennessee Supreme Court in State v. Campbell, 641 S.W.2d 890 (Tenn. 1982), a case in which the defendant received no hearing before a magistrate, but was instead permitted to make an appearance bond, concluded,
The failure to bring the Defendant before a magistrate, as provided by T.C.A. Sec. 55-10-203(a)(3), results only in release from custody of an accused who is still in jail when the issue is raised, or results in possible exclusion of evidence, [for example,] a confession that occurs during the delay. In short, the delay has no consequence in the law unless the defendant is prejudiced by it. State v. Campbell, 614 S.W.2d 890, 893 (Tenn. 1982) (citations omitted); see also State v. Billy L. Davis, No. 85-343-III, 1986 WL 5681, at *2 (Tenn. Crim. App., Nashville, May 20, 1986). Here, Defendant made bond approximately six hours after he was booke
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