IN THE CRIMINAL COURT FOR DAVIDSON COUNTY, TENNESSEE DIVISION VI Phope 26 My 19 STATE OF TENNESSEE ) "AY 10 py 245 ) CRIMINAL co v. ) Case Nos. GS767290 - 92 1"! “LER ) RICHARD ATCHLEY ) oc ORDER This matter is before the court upon the Defendant's Petition for Writ of Certiorari and Supersedeas seeking relief from the General Session Judge’s arbitrary, capricious and illegal continuance of his preliminary hearing while incarcerated and the failure to either dismiss the charges or to release him on a personal recognizance bond, STATEMENT OF FACTS! Defendant and three co-defendants were arrested on drug related charges on April 22, 2016, and set on the April 25 felony review docket for further discussions, When no resolution of the case resulted from the review docket discussions, a preliminary hearing was scheduled for all of the defendants at 9:15am on April 28. The jailed defendants, their respective attomeys, the Prosecuting attorney and the witnesses for the State were present and ready to proceed at the first call of the docket. Tt was after 11:00am before Judge Rachel Bell appeared in court to conduct any business? At 11:50am, Judge Bell advised the parties she was ready to proceed with the Preliminary hearing but she would have to leave no later than 12:30pm to teach a class at a local high school. She stated she would return at 3:30pm at which time she would conclude the Preliminary hearing. One of the two State's witnesses then advised the court that he had a scheduling conflict for later that day and the next day. Despite the good faith efforts of the Parties to reschedule the hearing within the ten (10) required by Tenn. R. Crim. Proc. S(e\(1\B), the proposed dates and times were not convenient to the court and the matter was reset rest by Judge Bell for May 16, 2016 over the vigorous opposition of defense counsel When it became obvious the cases were not going to be reset within the Prescribed ten (10) defense counsel sought to have his client released on his personal recognizance rather than have the charges dismissed. Defense counsel explained that Defendant was without any * The facts relevant to the issues before this court were not preserved by the General Sessions judge inexplicably, Therefore the stated facts are taken from facts agreed upon by the parties twas represented that Judge Bell never appears before 10:30 am due to sleep Issues related to her Type i diabetes.Delete Post any type of monetary bond. Although the State would not agree to the Defendant being release on his own recognizance, the state clected te defer to the court's ruling without argument. Judge Bell, without a hearing, any findings of teots ve conclusions of law reduced Defendant's bond from $32,500 to $7,500. Defendant remains in Jail as of today, May 10, with no prospects of securing the reduced bond. ISSUES 1 (Does this court have jurisdiction to hear the Petition for Writ of Certiorar and Supersedeas? 2. What is the standard of review to be applied to the Petition? 5. What remedies, if any, are available to an incarcerated defendant who is deprived of a preliminary hearing within ten (10) days of incarceration? CONCLUSIONS OF LAW Defendant argues that jurisdiction to hear this action is conferred upon this court by Tenn, Code Ann. 27-8-101°, generally deemed the common law writ of certiorari, and 40-11- 144%. The State’disputes the jurisdiction of this court to hear the matter since the cases remains Pending in the General Sessions Court. In State ex rel. Jefferson v State, 436 Sw 2d 437(Tenn.1969), the petitioner filed a petition in Criminal Court seeking relief from an order of the General Sessions Judge denying him bail. The State moved to dismiss the petition. The Supreme Court held the “petition should be treated as an appeal from the General Sessions Court {0 she Criminal Court by statutory writ of certiorari under T.C.A. 27-802 ( now TCA, 37-8. 102),” The primary difference between the two type of writs is the scope of review. The common law writ “does not ordinarily extend to a redetermination of the facts found by the [lower tribunal]; whereas the statutory writ generally allows for a trial de novo”. See generally State v, Lane, 254 8.W.34 349,357, FN4 (Tenn.2008)(citations omitted). In essence the common bne ‘writ is intended as a review of the legality of the action of the lower tribunal while the statutory writ is intended to review and correct errors of fact and law committed by such inferior tribunal. Id. {acting legally, when..there is no other plain, speedy or adequate remedy, * 40-11-144(b) states [ifthe action to be reviewed is that ofa court from wrich an appeal lies to a court inferior to {he supreme court or court of criminal appeals, review shall be sought in the next higher court upon wit or certiorari.”Itis therefore ORDERED that this matte be set for hearing on May 12, 2016 at 9:00am for a de novo hearing on Defendant's bond, Entered this 10" day of May, 2016 urn, Judge Criminal Collrt, Div. VI CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE Thereby certify that a true and exact copy of the foregoing Order has been forwarded to Ms. Amy Hunter, Assistant District Attomey, and Mr. Jared Mollenkof, Attorney for Defendane via their internal Metro email addresses this 10" day of May, 2016, and that a signed copy of the Order will be hand-delivered to them at the hearing,IN THE CRIMINAL COURT FOR DAVIDSON COUNTY, TENNESSEE g eo DIVISION VI ~ STATE OF TENNESSEE ) v. , Case Nos. GS767290-92 RICHARD ATCHLEY ; AMENDED ORDER This matter is before the court upon Defendant’s request for reconsideration of the court's ruling on his Petition for Writ of Certiorari and Supersedeas entered on May 10, 2016. The besis of the motion is that the court erroneously construed the petition to be a challenge to the General Sessions judge’s ruling on Defendant’ request to be released on his own recognizance, when the actual purpose of the petition was to challenge the actions of the lower court to arbitrarily and illegally continue the preliminary hearing of the pending charges well beyond the ten (10) limit mandated by Tenn. R. Crim. Proc. 5(c)(2)(A).! Defendant asserts that the appropriate remedy for the illegal and arbitrary acts of the lower court is to either dismiss the ‘warrants or to order defendant's release on his own recognizance pending the completion of the preliminary hearing. Defendant contends that it is mandatory that the hearing be set within ten days because it uses the word “shall” rather than a more discretionary word such as “should” and that failure to comply with the rule requires dismissal of the case or, at a minimum, the release of Defendant from jail. The court respectfully disagrees. As noted in Trapp v. McCormick, 130 S.W.2d 122 (Tenn.1939) “the generally rule undoubtedly is that those statutory provisions which relate to the mode, or time of doing the act to which the statute applies, are not held mandatory, but directory only. at 125. “The consequential distinction between directory and mandatory statutes is that the violation of the former is attended with no consequences, while the failure to comply with the requirements of the other is productive of serious results. Jd. (citations omitted). The court finds that the ten day requirement in the Rule is directory and not mandatory. Therefore, the failure to comply with the rule generally would not have any consequences. This presupposes, however, that the delay in conducting the hearing within ten days was accompanied by a good faith effort to do so. See e.g. State v. Whaley, $1 8.W.3d 568, 570-71(Tenn.Crim.App. 2000) And if it could not be done within ten days, then certainly every reasonable effort must be made to see that the intent of the rule is effectuated as quickly as possible, it being the intent not do cause persons presumed to be innocent to languish in jail without the benefit of at least an Tenn. &, Crim Proc. 5c(2}(A) states in part that "..when the defendant pleads not guilty the magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody.” The court ‘mistakenly cited the wrong provision of the rule in its eriginal opinion.adversarial probable cause hearing. On this note the court is concerned about the events that caused the preliminary hearing to be postponed initially and is even more concerned about the seemingly cavalier attitude demonstrated in the case being continued for eighteen (18) days, two weeks beyond the ten day directive, Admittedly the record is less than complete, but it is disturbing that coutt did not begin until almost two hours beyond the scheduled opening of court. The situation is exacerbated by the fact that the judge knew she was going to be leaving within 1 % hours after she finally took the bench to teach a class. Had court started on time the preliminary hearing could have been conducted before her departure. This court commends the general sessions judge for her contribution to the community and her dedication to her position, so it should not be necessary to point out that “[tJhe duties of judicial office, as prescribed by law, shall take precedence over a judge’s personal and extrajudicial activities.” Rule 10, Canon 2.1 of the Code of Judicial Conduct. The court is cognizant that the judge was prepared to retum later that afternoon, but did not take the time to determine if that created a conflict with any of the attorneys’ or witnesses’ schedules. The court is unclear why the preliminary hearing, once it was determined that it could not ‘be completed that day, had to be continued for eighteen days. The only information that the court has is that the witness who had the scheduling conflict was unavailable the next day and the judge the next week. The reason for the judge’s absence is unknown. It is also unknown way the case could not be heard the week of May 9. Although the attorneys were willing to come in earlier in the morning to conclude the hearing, the judge did not consider that to be a reasonable proposal. Judges have an absolute duty to perform their jobs promptly and with due diligence. The scant record before this court suggests this may not have occurred in this particular isolated case. Whatever the reason for the inordinate delay, it was not brought on by the actions of the defendant, but he is the one who is unduly suffering the consequences of not having his timely day in court It is therefore ORDERED that Mr. Atchley be released from jail under the supervision of the Pretrial Office. It is further ORDERED that Mr, Atchley shall report to Stephanie Krivcher in the Community Corrections office on the second floor of the A.A. birch Building by 9:00 am on May 12, 2016, or within two hours of his release from jail whichever shall first occur. Itis fiwther ORDERED that Ms. Kriveher shall enroll Mr, Atchley in the Avertest system for continued monitoring and drug screening until further orders of this court. It is further ORDERED that the pretrial release status of Mr. Atchley shall be revoked if he seeks to continue the preliminary hearing scheduled for May 16, 2016.Entered this 11" day of May, 2016 Mark J, Fishbum, Judge Criminal Court, Div. VI CERTIFICATE OF SERVICE Thereby certify that a true and exact copy of the foregoing Order has been forwarded to Ms. Amy Hunter, Assistant District Attomey, and Mr, Jared Mollenkof, Attomey for Defendant, via their internal Metro email addresses this 11" day of May, 2016, and by Metro mail the 12" day of May, 2016.