State v. Osborne

712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 27, 1986
StatusPublished
Cited by14 cases

This text of 712 S.W.2d 488 (State v. Osborne) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Osborne, 712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604 (Tenn. Ct. App. 1986).

Opinion

[490]*490OPINION

DUNCAN, Judge.

The appellant-defendant, Jimmy T. Osborne, has filed an interlocutory appeal, pursuant to Rule 9 of the Rules of Appellate Procedure, seeking a review of the trial court’s order granting the State’s petition for writ of certiorari and supersedeas and setting the cause for a hearing on its merits.

The State’s filing of its petition for writ of certiorari and supersedeas was preceded by the following events:

On September 9,1983, Officer Greg Frey appeared before the Honorable John P. Brown, Judge of the Davidson County General Sessions Court, and obtained a search warrant for the search of defendant’s residence. The search warrant was based upon information given to Officer Frey by an informant.

On February 13, 1984, Judge Brown found that the defendant had adduced sufficient evidence to controvert the facts contained in the affidavit to the search warrant. On the same date, Judge Brown ordered the State to produce its informant for an in camera examination. On February 23, 1984, the State filed a motion to reconsider this ruling. Subsequently, Judge Brown denied the motion and again ordered the State to produce the informant. The State advised Judge Brown that the State did not intend to produce the informant and would, instead, submit the case to the grand jury.

On April 27, 1984, Judge Brown quashed the search warrant on the basis that the State had not followed the orders of the court, and he also suppressed all evidence seized pursuant to the search warrant and ordered that the evidence could not be utilized by the State against the defendant in any future proceedings.

On June 18, 1984, the Davidson County Grand Jury returned an indictment charging the defendant with possession of a controlled substance with intent to sell. On July 17, 1984, the defendant filed in the Davidson County Criminal Court a motion to dismiss the indictment on the grounds that he had been deprived of a preliminary hearing, and that the State had procured the indictment in bad faith. The trial court, on August 10, 1984, granted the defendant’s motion to dismiss the indictment on the ground that the defendant had not received a preliminary hearing, and remanded the case to the sessions court for a preliminary hearing, apparently on the original arrest warrant.

When the cause came up again in sessions court for a preliminary hearing on August 23, 1984, Judge Brown found that the State did not intend to produce the informant in question, and proceeded to grant the defendant’s motion for a “temporary injunction,” enjoining the members of the Davidson County District Attorney General’s office, and others, “from utilizing the evidence suppressed in future proceedings, including presenting such evidence to the Davidson County Grand Jury to obtain an indictment.” The “temporary injunction” order concluded with the statement: “All other matters are reserved.” Also, on August 23, 1984, Judge Brown entered another order requiring the State to return to the defendant certain firearms which had been seized at the time the search warrant was executed.

Thereafter, on October 15, 1984, the State filed in the trial court a petition for writ of certiorari and supersedeas, in which it alleged that Judge Brown had exceeded his jurisdiction and had acted illegally in issuing the injunction and in ordering the return of the seized property.

Further, on December 13, 1984, the trial court granted the State’s petition, but stayed further proceedings on the petition, pending an interlocutory appeal under Rule 9 of the Rules of Appellate Procedure. In his order, the trial judge stated, among other things, that the injunction granted by the sessions court was not a final order, as contemplated by the appeal requirements of T.C.A. § 27-5-108, and that the State’s petition for certiorari was the “proper vehicle to challenge the Order of the General Sessions Court.”

[491]*491We note that on January 17, 1985, another panel of our Court granted the defendant’s application for a T.R.A.P. 9 appeal.

The defendant first contends that the trial court erred in granting the State’s petition for writ of certiorari and superse-deas, arguing that the State should have sought an appeal pursuant to T.C.A. § 27-5-108, rather than T.C.A. § 27-8-101. We find no merit to this contention.

As previously stated, in its petition for writ of certiorari and supersedeas, the State sought the trial court’s review of the sessions court’s order which enjoined the prosecution from utilizing in future proceedings evidence seized during the execution of the search warrant. Also, the State sought review of the order returning the firearms seized in the search.

T.C.A. § 27-5-108 allows an appeal as of right to the circuit (or criminal) court within ten (10) days from the date of the judgment, and the appeal is to be heard de novo in the circuit court. In a trial de novo, the matter is tried anew as if no other trial had occurred. Hohenberg Bros. Co. v. Missouri Pac. R. Co., 586 S.W.2d 117 (Tenn.App.1979). The judgment of the general sessions court is abrogated. Roberts v. State, 212 Tenn. 25, 367 S.W.2d 480 (1963).

Obviously, the wording of T.C.A. § 27-5-108 means that before such an appeal can be taken, there must have been a final judgment entered in the general sessions court, and an appeal under this statute cannot be had for the review of interlocutory orders, as were issued by the sessions court in the instant case.

The State’s petition in this case was filed pursuant to the provisions of T.C.A. § 27-8-101 (Supp.1985), which provides:

The writ of certiorari may be granted whenever authorized by law, and also in all cases where an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy, or adequate remedy. This section does not apply to actions governed by the Tennessee Rules of Appellate Procedure.

We point out that proceedings of general sessions courts are not governed by the Rules of Appellate Procedure. See T.R.A.P. 1. Thus, the authority of the State to proceed in the instant case by the certiorari route must be tested by the provisions of the above statute and by prior case rulings.

In Bragg v. Boyd, 193 Tenn. 507, 511, 246 S.W.2d 575 (1952), the Court stated that certiorari has traditionally been used to “review proceedings of an inferior tribunal at an intermediate stage and never to review a cause after final judgment.”

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Cite This Page — Counsel Stack

Bluebook (online)
712 S.W.2d 488, 1986 Tenn. Crim. App. LEXIS 2604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-osborne-tenncrimapp-1986.