         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                       March 2000 Session

                  STATE OF TENNESSEE v. ELIZABETH DAVIS

                       Appeal from the Criminal Court for Unicoi County
                              No. 4387   Robert E. Cupp, Judge



                      No. E1999-00373-CCA-R3-CD - September 19, 2000




Joseph M. Tipton, J., dissenting.



I respectfully disagree with the results reached in the majority opinion. I view the record in a
different light than my colleagues.

        I do not believe that the issue of the trial court’s denying the state’s motion to amend the
indictment is properly before us, and I believe it is moot. I do not believe that we can ignore the
fact that the state moved for a dismissal through nolle prosequi and that the trial court granted the
dismissal. I would not allow the state to seek either review of the amendment issue or
reinstatement of the indictment through this appeal when it was the author of the dismissal. The
only issue that is properly before us is whether the dismissal should be with prejudice.

        The record reflects that the trial court set the case for trial with the aim of disposing of it
as soon as reasonably possible, because it viewed the then three-and-one-half-year-old case to
have been pending too long. The record indicates that the parties were previously advised by the
trial court that it was not going to continue the case again. In this respect, the state had been
forewarned that the trial court viewed the time of the trial to be “of the essence.”

       However, fifteen days before trial, the state filed a motion to amend the indictment so as
to change the periods of time alleged in the four-count indictment for the offenses to have
occurred. For three counts, the amending dates differed from the original dates and greatly
expanded the time involved. For the fourth count, the amending dates were covered by, but
narrower than, the original dates alleged.
         The defendant’s attorney declared that she had relied upon the dates in the indictment and
that she would not be ready to try the case on the date of trial if the amendments were allowed.1
It is apparent that the trial court accepted the attorney’s assertions as fact. Also, the state did not
provide any justification for the amendments not being sought at an earlier date. Under these
circumstances, I believe that the trial court was within its discretion to deny an amendment that
would delay the proceedings further and that material evidence exists in the record to support its
decision. A trial court has substantial discretion “to control the docket and the flow of justice
therefrom” in order for the court system to function properly. State v. Barbara Norwood, No. 03-
C-01-9111-CR-00366, Knox County, slip. op. at 4 (Tenn. Crim. App. Dec. 10, 1992), app.
denied (Tenn. May 10, 1993).

         In the present case, the state asserted that it could not proceed on the indictment without
the amendments.2 When the trial court required the case to proceed to trial, the state advised the
court that it was entering a nolle prosequi. Given the fact that the state was aware of the trial
court’s concern about the previous delay in prosecuting the case and its intent to resolve the case
by the trial date, I do not believe that the record reflects such diligence by the state that would
justify extending the prosecution beyond the trial date or allowing a reprosecution after dismissal.
Absent a showing that the state’s perceived need for amendments was not reasonably
discoverable until the motion to amend was filed fifteen days before the trial date, I believe that
the trial court should be affirmed.



                                                                    ___________________________________
                                                                    JOSEPH M. TIPTON, JUDGE




       1
           The attor ney did no t explain how the new date s on the fourth c ount hinder ed her rea diness for trial.

       2
           The state did not explain how it was hindered from proceeding to trial on count four.

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