Says Former Police Sergeant Should Have All Charges Dismissed
posted December 9, 2005
The attorney for former Chattanooga Police Sgt. Gerry Davis said all charges should be dismissed against him based on an expired statute of limitations.
A Nashville jury on Thursday found Davis innocent of rape, but convicted him on attempted rape.
Attorney Lee Davis said the statute of limitations on rape is eight years, and the incident occurred seven years ago. He said a rape conviction could have been sustained.
But he said the statute of limitations on attempted rape is four years.
Attorney Davis, in a motion filed Friday, said the statute of limitations on attempted rape "expired nearly three years prior to State filing the indictment."
He said Judge Jon Kerry Blackwood should not accept the jury's attempted rape conviction and all charges should be dismissed against Gerry Davis.
Here is the full motion:
MOTION TO NOTICE PLAIN ERROR & TO DISMISS ALL CHARGES WITH PREJUDICE & MEMORANDUM IN SUPPORT
COMES NOW, the Defendant, Gerry Davis, by counsel and moves this Court to enter a verdict of not guilty and dismiss all charges to the above captioned indictment sua sponte pursuant to Tennessee Rules of Criminal Procedure 52(b), Plain Error. The Defendant would show unto the Court as follows:
1. The Defendant was charged with Rape, a class B felony, in an indictment dated April 20, 2005;
2. The offense dated of the Rape charge was March 27, 1998;
3. Seven years transpired between the offense date and the Indictment date;
4. On December 8, 2005, a jury acquitted the Defendant of Rape but convicted him of the lesser included offense of Attempt Rape, a class C Felony;
As a matter of law, this Court is without subject matter jurisdiction to convict the Defendant in that the statute of limitations for Attempt Rape, a class C Felony, is four years and expired nearly three years prior to State filing the Indictment.
MEMORANDUM IN SUPPORT
In Tennessee, Rape, a class B felony, has a statute of limitations of 8 years. T.C.A. § 40-2-101(2). Attempted Rape is a class C Felony and has a statute of limitations of only four years. T.C.A. § 40-2-101(3). This Court is without subject matter jurisdiction to accept a verdict on this Class C Felony and must dismiss all remaining charges.
In State vs. Seagraves 837 S.W.2d 615, 620 (Tenn. Crim. App 1992), the Tennessee Court of Criminal Appeals held that it is “an absolute bar to the prosecution of a criminal offense after the expiration of the period designated by the statute of limitations.” The Court concluded that the trial court is without subject matter jurisdiction and the judgment is void. Id. at 621.
In Seagraves, the Defendant was indicted within the applicable statute of limitations for second degree murder. However, the jury convicted the Defendant of the lesser-included offense of involuntary manslaughter. Id. at 616. The Tennessee Court of Criminal Appeals acting on its own determined that the Defendant’s conviction for involuntary manslaughter violated the applicable statute of limitations. The Court stated,
“When the General Assembly created time limitations on the prosecution of certain enumerated crimes, it declared that it would not prosecute an individual for the commission of these crimes after the expiration of the designated period.” Id. at 620. The Court went further stating, “[C]oncomitantly, a substantive right was created which prevented the State from prosecuting citizens for an offense that is barred by the statute of limitations.” Id. The Court held that such right “creates an absolute bar to the prosecution of a criminal offense…” Id.
This rule of law applies in the present case. The Defendant was specifically acquitted of the crime within the statute of limitations and it is plain error that affects the substantial rights of the Defendant for this Court to allow this conviction to stand.
WHEREFORE PREMISES CONSIDERED Mr. Davis, requests the following:
1. An immediate hearing before the trial court and;
2. Entry of a not guilty verdict by the trial court sua sponte.
Respectfully Submitted:
___________________________
Lee Davis, BPR #015958
Bryan Hoss, BPR#021529
508 East 5th Street
Chattanooga, TN 37403
(423) 266-0605
(423) 266-0687-Fax
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