RULE 5. INITIAL APPEARANCE BEFORE MAGISTRATE(a) In General. Any person arrested except upon a capias pursuant to an indictment or presentment shall be taken without unnecessary delay before the nearest appropriate magistrate of the county from which the warrant for arrest issued, or the county in which the alleged offense occurred if the arrest was made without a warrant unless a citation is issued pursuant to Rule 3.5. If a person arrested without a warrant is brought before a magistrate, an affidavit of complaint shall be filed forthwith. When an arrested person appears initially before a magistrate, the magistrate shall proceed in accordance with this rule.
(b) Small Offenses Triable by Magistrate. If the offense charged is a small offense triable by the magistrate under T.C.A. §§40-117 and 40-408, without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant's plea. If the defendant pleads guilty the magistrate may hear such evidence as is necessary to a sound judgment and sentence the defendant to pay a fine. If the defendant pleads not guilty, the case shall be set for trial at some future day and the defendant's pretrial release dealt with under the provisions of applicable law unless the defendant agrees to an immediate trial. If the defendant is convicted, appeal lies as a matter of right to the Circuit or Criminal Court for a trial de novo without a jury.
(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the magistrate shall advise the defendant of the defendant's right to be prosecuted only upon an indictment or presentment, and to be tried by a jury. Unless the defendant expressly waives these rights in writing, the magistrate shall set a preliminary examination to be had within ten days if the defendant remains in custody and within thirty days if released under Rule 46, unless the defendant waives preliminary examination, in which case the magistrate may bind the defendant over to the grand jury. If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the district attorney general or the district attorney general's representative does not then object. In the event of such waiver, the magistrate shall hear the case upon the guilty plea and fix such sentence as the evidence warrants and the law directs. An appeal shall lie from a judgment upon a plea of guilty to a misdemeanor after waiver of grand jury investigation and jury trial, but only as to the sentence imposed.
(2) Upon Plea of Not Guilty. If the plea is not guilty, the magistrate shall set the case for a preliminary examination within ten days if the defendant remains in custody and within thirty days if released under applicable law, unless the preliminary examination is expressly waived in writing, in which case the magistrate may then bind the defendant over to the grand jury. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury and submit the judgment in the case to the jurisdiction of the general sessions court, and the district attorney general does not object, the magistrate may after such written waiver hear the case upon the plea of not guilty and enter such verdict and judgment as the evidence warrants and the law directs, including any fine or jail sentence prescribed by law for such misdemeanor. The State shall have no appeal from a judgment of acquittal. The defendant may appeal a guilty judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.
(d) Felonies. If the offense charged is a felony, the defendant shall not be called upon to plead. The magistrate shall inform the defendant of:
(1) the charge and the contents of the affidavit of complaint,
(2) the right to counsel,
(3) the right to appointed counsel if indigent,
(4) the right to remain silent and give no statement,
(5) the fact that any statement given voluntarily may be used against the defendant,
(6) the general circumstances under which the defendant may obtain pretrial release, and
(7) the right to a preliminary examination.
If the defendant waives preliminary examination, the magistrate shall forthwith bind the defendant over to the grand jury. If the defendant does not waive preliminary examination, the magistrate shall set a preliminary examination within ten days if the defendant remains in custody, and within thirty days if released under applicable law.
(e) Indictment Before Preliminary Examination. Any defendant arrested prior to indictment or presentment for any offense, whether misdemeanor or felony, except small offenses, shall be entitled to a preliminary hearing upon the defendant's 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 the preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at the defendant's own request or that of the prosecutor, the defendant 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 the defendant's arrest.
[Amended effective August 1, 1979; August 22, 1984; July 10, 1988.]
As far as the actions before a magistrate exercising the jurisdiction of a General Sessions Court are concerned, Rule 5 substantially embodies existing law as to jurisdiction and procedure. This rule is intended to provide comprehensive guidance for those exercising this jurisdiction.
Small offenses are those which carry a maximum fine of fifty dollars and for which no imprisonment may be inflicted. T.C.A. § 40-408.
It should be noted in connection with subsection (b), dealing with small offenses triable by a magistrate, that there is no appeal from the judgment in a case in which a guilty plea is entered. Where trial is held for a small offense upon a plea of not guilty and a conviction results, there is a right to a trial de novo upon appeal, but there is no right to a jury upon the new trial (there being no such right as to small offenses in the first instance). Further, where the defendant in serious misdemeanor cases waives the right to a jury trial, that waiver before the magistrate carries over into the Criminal or Circuit Court and attaches to the trial de novo on appeal.
The rights in all (except small) offenses to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon the provisions of Art. 1, §§ 6 and 14, Constitution of Tennessee.
The preliminary examination referred to in this rule is the proceeding formerly called a preliminary hearing. It must be scheduled within ten days if the accused is in custody, and within thirty days if the accused is on bond. See Rule 45(a), dealing with the computation of time.
It is important to note that while the Constitution and the Rules vest the right to trial by jury in the accused, this right cannot be waived under this rule in the face of an objection by the District Attorney General or his or her representative. This provision acts as a safeguard against the possibility that an accused might be permitted to enter a guilty plea to a lesser included offense and effectively bar prosecution for a more serious crime. Price v. Georgia, 398 U.S. 323 (1970); Waller v. Florida, 397 U.S. 387 (1970). Hence, in effect the State now has a right to a trial by jury, if the District Attorney General or his or her representative asserts the right by objecting to the waiver by the defendant. Note that the rule does not require an affirmative act on behalf of the State before an accused can effectively waive the right, but simply provides that it cannot be done in the face of an objection. This wording by the Commission was deliberate, because it is recognized that many General Sessions Courts must sometimes operate without the presence of the District Attorney General or his or her representative. Nevertheless, in order to exercise an objection and thus protect the State's position, the District Attorney General personally or by representative will need to know of the proceeding and to enter an objection. The court should construe the words "or the district attorney general's representative" to include anyone connected with law enforcement who reports to the court that the District Attorney General or one of his or her assistants has requested that the objection be made.
Under Rule 5(d), covering a felony charge, it is extremely important that the magistrate inform the accused in substantial compliance with this rule.
Rule 5(e) simply carries over into the rules the same conditional right to a preliminary hearing now embodied in T.C.A. s 40-1131. It was not the intention of the Commission to enlarge or diminish that conditional right; therefore, the body of case law which has been developed in connection with the statute retains its precedential value. Waugh v. State, 564 S.W.2d 654 (Tenn.1978).
The Commission assumes that a judge may constitutionally impose a fine in excess of fifty dollars in any case wherein a jury could have done so, had the jury not been waived, despite the provision of Art. 6, §14, Constitution of Tennessee, and certain cases decided thereunder. The Commission's rationale, which was presented to the Supreme Court prior to the approval of these rules, is that the court has jurisdiction to enter a judgment calling for a fine in excess of fifty dollars, where provided by law and set by a jury. If the accused waives the right to have the jury set the fine and agrees that the judge set it, this act confers upon the court jurisdiction to set such a fine. An analogous situation arises each time a defendant waives a jury and permits a trial before a judge. In either instance the judge can exercise the full jurisdiction of the court because there has been a valid waiver of the right to have jury participation. Thus, under these rules, a judge can set a fine to the full limit of the appropriate penal statute, when a jury has been waived.
Comment to 1984 Amendment
The amendments to Rule 5(c)(1) and (2) conform the rule to Tennessee Code Annotated, Section 40-4-112 which allows an appeal of the sentence even upon a plea of guilty. The amendment has no other implication as to the manner or nature of appeals from general sessions court.
It should be noted that while existing Rule 5(c)(2) allows a de novo appeal from a general sessions court conviction, the appeal is without a jury. However, Public Acts 1984, Chapter 879, effective July 1, 1984, now permits a jury trial on such an appeal if a demand for a jury trial is made at the time of filing the appeal. If no such demand is made the right to a jury trial is waived.
Comment to 1988 Amendment
The amendment to Rule 5(c)(2) conforms the rule to T.C.A. Section 27-3-131(a). This statute altered the former provision of this rule which prohibited a jury trial on de novo appeal. In light of this legislation this rule now allows a de novo appeal "as provided by law" which contemplates a jury trial as provided by T.C.A. Section 27-3-131(a). Attorneys should be aware, however, that T.C.A. Section 27-3-131(b) requires that the demand for a jury must be made at the time of filing an appeal.