IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
May 6, 2009 Session
STATE OF TENNESSEE v. NEDDIE MACK LAWSON
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Claiborne County
No. 13055 E. Shayne Sexton, Judge
No. E2007-00330-SC-R11-CD - Filed August 24, 2009
The defendant was originally indicted for driving under the influence, second offense. More than
one year after the arrest, the grand jury returned a second indictment, charging the defendant with
driving under the influence, fourth offense, a Class E felony. The State filed a nolle prosequi as to
the first indictment and, upon motion by the defendant, the trial court granted an order to expunge
these records. At trial, the defendant was convicted of driving under the influence, third offense, a
misdemeanor. The Court of Criminal Appeals affirmed. This Court granted review in order to
determine whether the one-year statute of limitations applicable to misdemeanors barred the
prosecution. Because the trial court properly took judicial notice of the pendency of the first
indictment at the time of the second, the statute of limitations, regardless of the efficacy of the order
of expunction, was tolled and the prosecution was timely. The judgment is, therefore, affirmed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed
GARY R. WADE , J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., CORNELIA
A. CLARK, WILLIAM C. KOCH , JR., and SHARON G. LEE, JJ., joined.
Michael Glenn Hatmaker, Jacksboro, Tennessee, for the appellant, Neddie Mack Lawson, I.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Leslie
E. Price, Assistant Attorney General; William Paul Phillips, District Attorney General; and Amanda
Sammons, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
On June 20, 2005, Officer Larry Mozingo of the Claiborne County Sheriff’s Department
observed Neddie Mack Lawson (the “Defendant”) and one other individual driving four-wheel, all-
terrain vehicles (ATVs) on State Highway 90. As Officer Mozingo began to follow the two vehicles
with his cruiser, he observed that the Defendant was holding loosely onto the handlebars of his ATV
and weaving on and off the roadway, coming perilously “close to striking one of the road signs.”
The other driver appeared to be in proper control of his ATV and was not stopped. When Officer
Mozingo activated his blue lights and siren in an effort to stop the Defendant, the Defendant
continued to drive until the officer used his cruiser to force him to the side of the highway. Two
unopened cans of alcoholic beverages were placed behind the seat of the ATV, and two more
unopened cans were between the seat and the rear rack. After determining that the Defendant
smelled strongly of alcohol and had slurred speech, the officer asked the Defendant if he could
perform a field sobriety test, and the Defendant responded that he could not. When questioned, the
Defendant admitted that he, together with his friend, had drunk “about a case” of beer. The
Defendant, who was covered in mud and had blood on his face, arms, and legs, explained that he had
wrecked the ATV while riding in the mountains. He was unable to stand without leaning on the
vehicle, and the officer seated him on the pavement in front of the ATV so he would not fall and
further injure himself. After being transported to the hospital, the Defendant consented to a blood
alcohol test and was treated for his injuries. His blood alcohol content was measured at .19 percent.
Initially, the Defendant was indicted for driving under the influence, second offense, a
misdemeanor.1 Later, the State discovered that he had as many as three prior convictions for driving
under the influence. On August 8, 2006, some fourteen months after the arrest, the Grand Jury
1
At the time of the offense, Tennessee Code Annotated section 55-10-403(a)(1) (2004) stated as follows:
Any person or persons violating the provisions of §§ 55-10-401 – 55-10-404 shall, upon conviction
thereof, for the first offense be fined not less than three hundred fifty dollars ($350) nor more than one
thousand five hundred dollars ($1,500), and such person or persons shall be confined in the county
jail or workhouse for not less than forty-eight (48) hours nor more than eleven (11) months and
twenty-nine (29) days; and the court shall prohibit such convicted person from driving a vehicle in the
state of Tennessee for a period of time of one (1) year. . . . For conviction on the second offense, there
shall be imposed a fine of not less than six hundred dollars ($600) nor more than three thousand five
hundred dollars ($3,500), and the person or persons shall be confined in the county jail or workhouse
for not less than forty-five (45) days nor more than eleven (11) months and twenty-nine (29) days, and
the court shall prohibit such convicted person or persons from driving a vehicle in the state of
Tennessee for a period of time of two (2) years. Upon the conviction of a person on the second
offense only, a judge may sentence such person to participate in a court approved alcohol or drug
treatment program. For the third conviction, there shall be imposed a fine of not less than one
thousand one hundred dollars ($1,100) nor more than ten thousand dollars ($10,000), and the person
or persons shall be confined in the county jail or workhouse for not less than one hundred twenty (120)
days nor more than eleven (11) months and twenty-nine (29) days, and the court shall prohibit such
convicted person or persons from driving a vehicle in the state of Tennessee for a period of time of
not less than three (3) years nor more than ten (10) years.
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returned a second indictment, alleging driving under the influence, fourth offense, a Class E felony.2
The Defendant then filed a motion to dismiss “all misdemeanor counts, lesser included or
specifically charged, with regard to” the second indictment. Afterward, he filed a second motion to
dismiss, arguing that the one-year statute of limitations applied because the underlying offense,
driving under the influence, was a misdemeanor, and felony driving under the influence was merely
an “enhancement offense.” See Tenn. Code Ann. § 40-2-102(a) (2003) (“Except as [otherwise]
provided . . . all prosecutions for misdemeanors shall be commenced within twelve (12) months next
after the offense has been committed . . . .”). The trial court denied each of the motions, ruling that
the second indictment was timely because the two-year statute of limitations applied. See Tenn.
Code Ann. § 40-2-101(b)(4) (2003) (“Prosecution for a felony offense shall begin within . . . [t]wo
(2) years for a Class E felony.”). At the same hearing, however, the trial court did grant a defense
motion to expunge the records pertaining to the first indictment based upon the nolle prosequi filed
by the State. See Tenn. Code Ann. § 40-32-101(a)(3) (2003) (“Upon petition by a defendant in the
court which entered a nolle prosequi in the defendant’s case, the court shall order all public records
expunged.”).
At the conclusion of the first phase of the bifurcated trial, the jury returned a verdict of guilt
as to the primary charge of driving under the influence. During the penalty phase of the trial, the
State presented certified copies of three previous judgments of conviction for driving under the
influence. The trial court, however, excluded one of the documents, a February 25, 1992 judgment
in Dalton, Georgia, as insufficiently reliable for admission as evidence. At that point, the Defendant
successfully sought dismissal of the felony count because there were insufficient underlying offenses
to support it. Later, after the jury received evidence of the prior convictions, the Defendant argued
that because the exclusion of one of the three prior convictions limited the charge to a misdemeanor,
the one-year statute of limitations barred the prosecution. The trial court denied the Defendant’s
motion to dismiss, holding that the statute of limitations was not a bar. Ultimately, the jury found
the Defendant guilty of driving under the influence, third offense, a misdemeanor. The trial court
imposed a sentence of eleven months and twenty-nine days, seventy-five percent of service, with 150
days of confinement in jail. The Defendant was fined $7,500.
2
Section 55-10-403(a)(1) further stated:
Notwithstanding any other provision of law to the contrary, the fourth or subsequent conviction shall
be a Class E felony punishable by a fine of not less than three thousand dollars ($3,000) nor more than
fifteen thousand dollars ($15,000); by confinement for not less than one hundred fifty (150)
consecutive days, to be served day for day, nor more than the maximum punishment authorized for
the appropriate range of a Class E felony; and the court shall prohibit the person from driving a motor
vehicle for a period of five (5) years. For the provisions of the preceding sentence to apply, at least
one (1) of the violations of § 55-10-401 must occur on or after July 1, 1998.
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After the trial, defense counsel filed a motion for judgment of acquittal, again asserting that
the one-year statute of limitations as to misdemeanors precluded the conviction.3 While recognizing
that the statute of limitations is tolled when a second or superseding indictment is filed while the
original indictment was still pending, defense counsel pointed out that the order of expunction left
the State without any proof that the previous indictment was pending when the second indictment
was returned. At the conclusion of the hearing, the trial court denied the motion.4
On appeal, our Court of Criminal Appeals affirmed, ruling that the State was entitled to file
the second, superseding indictment so long as the original indictment was pending and holding that
the one-year statute of limitations applicable to misdemeanors did not, therefore, prevent
prosecution. State v. Lawson, No. E2007-00330-CCA-R3-CD, 2008 WL 2557361, at *7 (Tenn.
Crim. App. June 26, 2008). Our intermediate appellate court acknowledged that the prior indictment
had been expunged, but ruled that it was the duty of the Defendant, not that of the State, to provide
a transcript “with respect to those issues that are the bases of the appeal.” Id. at *6 (quoting Tenn.
R. App. P. 24(b)). We granted the application for permission to appeal in order to determine whether
there was adequate proof, in light of the order of expunction, to establish that the statute of
limitations on commencing the prosecution of a misdemeanor was tolled by the filing of a timely
prior indictment.
Analysis
The State, while acknowledging “the limited record” as to the first indictment, nevertheless
argues that the indictment was clearly pending upon the return of the second indictment, thereby
tolling the limitations period for a misdemeanor. The Defendant, however, maintains that the State
has failed to establish any basis for an extension of the one-year limit. Because the record
demonstrates that the trial court took judicial notice of the pendency of the prior indictment before
granting the order expunging the underlying records, the one-year statute of limitations was tolled
and did not bar the prosecution.
I. Judicial Notice
Judicial notice is defined as an acceptance by a court, “for purposes of convenience and
without requiring . . . proof, of a well-known and indisputable fact.” Black’s Law Dictionary 863-64
(8th ed. 2004). Traditionally, Tennessee courts have taken judicial notice of certain facts “as a
substitute for the production of evidence.” Metro. Gov’t of Nashville & Davidson County v.
Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977). The purpose of the doctrine is to save time and
dispense with the necessity of the presentation of proof. State ex rel. Schmittou v. City of Nashville,
3
A defendant who is both indicted for a felony that includes a misdemeanor and subsequently acquitted of the
felony but convicted of the misdemeanor is entitled to a discharge if the offense was committed more than one year
before the initial indictment. Hickey v. State, 174 S.W . 269 (Tenn. 1915); Turley v. State, 50 Tenn. (3 Heisk.) 11, 13
(1870); see also Smith v. State, 327 S.W .2d 308, 326 (Tenn. 1959) (finding no error when the trial court refused to
instruct the jury on lesser-included offenses that were barred by the statute of limitations).
4
The transcript of the hearing held on January 12, 2007, establishes that the trial court denied the motion for
judgment of acquittal. On May 8, 2009, the record was supplemented to include the order denying relief.
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345 S.W.2d 874, 883 (Tenn. 1961); State v. Nunley, 22 S.W.3d 282, 287 (Tenn. Crim. App. 1999).
Resort to judicial notice is, however, subject to limitations, as indicated by Rule 201 of the
Tennessee Rules of Evidence, effective January 1, 1990, which is virtually identical to its counterpart
under the Federal Rules of Evidence. Our rule provides as follows:
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable
dispute, in that it is either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and
supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity
to be heard as to the propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may be made after judicial
notice is taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the
proceeding.
(g) Instructing the Jury. In a civil action or proceeding, the court shall instruct the
jury to accept as conclusive any fact judicially noticed. In a criminal case, the court
shall instruct the jury that it may, but is not required to, accept as conclusive any fact
judicially noticed.
Tenn. R. Evid. 201.
Courts, therefore, “may take judicial notice whether requested or not” and may do so “at any
stage of the proceeding.” This rule applies to both trial and appellate courts. See, e.g., Gov’t of the
Canal Zone v. Burjan, 596 F.2d 690, 694 (5th Cir. 1979); Dash v. Carlton, No. E2001-02867-CCA-
R3-PC, 2002 WL 31026613, at *3 (Tenn. Crim. App. Sept. 11, 2002). Further, even when a trial
court fails to take judicial notice, the appellate courts may do so upon review. See Central Green
Co. v. United States, 531 U.S. 425, 434 (2001); Stone v. United States, 326 F.3d 785, 789 n.1 (6th
Cir. 2003). This Court “may consider . . . any additional facts . . . judicially noticed.” Tenn. R. App.
P. 13(c); see also State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964) (“This court
may, of course, take judicial notice of facts in an earlier proceeding of the same case and the final
action of the court thereon.”); Givens v. State, 702 S.W.2d 578, 579 (Tenn. Crim. App. 1985).5
5
A judge is not, however, to use knowledge that he or she has gained only as an individual observer outside
of the judicial proceedings. 9 John Henry W igmore, Evidence in Trials at Common Law § 2569, at 723 (Chadbourn rev.
ed. 1981). A decision may not be based upon the personal knowledge of the judge, but only upon the facts learned by
virtue of the legal procedures in which the judge plays a neutral role. Vaughn v. Shelby W illiams of Tenn., Inc., 813
S.W .2d 132, 133 (Tenn. 1991). Stated differently, “[i]t matters not what is known to the judge personally if it be not
known to him in his official capacity.” Galbreath v. Nolan, 429 S.W .2d 447, 450 (Tenn. Ct. App. 1967).
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Prior to the adoption of our Rules of Evidence, judges in the trial courts of our state were
permitted to take notice not only of the filings in their own proceedings, Sims v. Barham, 743
S.W.2d 179, 181 (Tenn. Ct. App. 1987), but of also an earlier hearing in the same action. Carmack
v. Fidelity-Bankers Trust Co., 177 S.W.2d 351, 352 (Tenn. 1944). Facts relating to the operation
of the courts, matters occurring within the immediate trial or appeal, or developments in a prior trial
or prior proceedings all have been subject to judicial notice. Delbridge v. State, 742 S.W.2d 266,
267 (Tenn. 1987); State ex rel. Inman v. Brock, 622 S.W.2d 36, 52 (Tenn. 1981), cert. denied, 454
U.S. 941 (1981); Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005). For example, this
Court has taken judicial notice of the minutes of the trial court in order to determine the propriety
of a petition for habeas corpus relief. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 188
(Tenn. 1968). While observing in Henderson that judicial notice does not extend to the knowledge
gained by the trial judge in a personal capacity, this Court did permit judicial notice of those readily
verifiable “facts which a judge under rules of legal procedure may properly take or act upon without
proof.” Id. Thus, those matters pertaining to the records of a court are subject to judicial notice by
the judge of that court. See generally Robert Banks, Jr. & Elizabeth T. Collins, Judicial Notice in
Tennessee, 21 Mem. St. U. L. Rev. 431 (1991).
Judicial interpretations of the corresponding federal rule provide support for the proposition
that “[i]f the records are of the court itself, they may be judicially noticed and need not be proved.”
2A Charles A. Wright et al., Federal Practice and Procedure: Criminal § 441, at 254 (3d ed. 2000).
In Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006), the Second Circuit Court of Appeals
upheld the district court’s reliance upon a docket sheet which, as a public record, was a proper
subject of judicial notice. Further, the federal courts have approved the taking of judicial notice of
filed documents so long as the purpose was “to establish the fact of such litigation and related
filings,” rather than to establish the truth of the matters asserted in the other litigation. Liberty Mut.
Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (quoting Kramer v. Time
Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Further, in Lee v. City of Los Angeles, 250 F.3d
668, 689-90 (9th Cir. 2001), the Ninth Circuit determined that the district court had properly taken
judicial notice of a waiver of extradition form and the transcript of the extradition hearing, which
were matters of public record. Other federal cases concur in the axiom that if the proceedings are
of a particular court, that court may appropriately take judicial notice. See, e.g., United States v.
McCargo, 783 F.2d 507, 509 (5th Cir. 1986); United States v. Crow Dog, 532 F.2d 1182, 1188 n.5
(8th Cir. 1976), cert. denied, 430 U.S. 929 (1977).
Before considering the Defendant’s request to expunge the first indictment in this case, the
trial court addressed and refused to grant the Defendant’s motion to dismiss the second indictment.
Thereafter, the following exchange took place:
MR. HATMAKER (for the Defendant): [I]f I’ve ever been right on a motion, [the
motion to expunge i]s it.
THE COURT: . . . . [I]s there any objection to that?
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MS. SAMMONS (for the State): Your Honor, the only objection that I had to Mr.
Hatmaker getting me to sign [a proposed order of expungement] any sooner was that
the motions to dismiss [the second indictment] were coming up today, and I thought
you might need to consider the prior indictment[,] so I didn’t want to have it
expunged yet until we had considered that.
THE COURT: Considering the prior indictment is probably . . . without question, the
most problematic thing that you have . . . .
....
MS. SAMMONS: I mean, you did say that it could be brought up at trial, the issue
of whether we preserved anything with the prior indictment. I just don’t want us to
come to trial and then if the issue should come up of whether the misdemeanor is
chargeable . . . when the prior indictment was dismissed . . . .
THE COURT: . . . I mean, the expungement from the record will not prevent you
from doing that type of thing.
MS. SAMMONS: Okay.
THE COURT: . . . . I’m assuming the defendant just wants that off. There may be
other--
MR. HATMAKER: Oh, no. I’m doing it purely for what the State anticipates I’m
doing it.
THE COURT: All right.
MR. HATMAKER: Absolutely. I admit it, acknowledge it, and intend to rely upon
that expunction . . . .
....
THE COURT: Upon motion of the defendant . . . I’m gonna grant it. . . . And the net
effect of it . . . let’s just see what happens down the line.
MR. HATMAKER: Correct.
(Emphasis added).
Moreover, several weeks after the return of the guilty verdict and the expunction of the
records pertaining to the first indictment, the trial court made reference to the prior indictment:
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THE COURT: I remember. I don’t have to [look at the records]. I know how all that
happened. And the question is whether what . . . effect does that have – the charging
instrument that went to trial [and] was returned over a year after the original offense
date. . . . [C]ertainly, on the face of the indictment the statute of limitation was fine.
(Emphasis added). While denying the Defendant’s motion for a judgment of acquittal, the trial court,
specifically acknowledging the pendency of the first indictment at the filing of the second,
superseding indictment, ruled that the one-year limitations period had been tolled and the prosecution
was timely.
In our assessment, the trial court properly exercised its discretionary authority to
acknowledge the existence of the first indictment at the time the superseding indictment was entered.
At that point in the proceedings, the pendency of the indictment was “not subject to reasonable
dispute” and was “capable of accurate and ready determination by resort to” the record of the
proceedings, the accuracy of which could not be questioned. Tenn. R. Evid. 201(b). In consequence,
we accept as fact the pending status of the first indictment at the issuance of the second. Further,
under these circumstances, the Defendant, as the appellant, had the duty to provide any portions of
that record that might call into question the propriety of the judicially noticed facts. Tenn. R. App.
P. 24(b). He has not, of course, been able to do so.
II. Statute of Limitations
Tennessee Code Annotated section 40-2-104 (2006 & Supp. 2007) defines the
commencement of a prosecution as follows:
A prosecution is commenced . . . by finding an indictment or presentment, the issuing
of a warrant, the issuing of a juvenile petition alleging a delinquent act, binding over
the offender, by the filing of an information . . . or by making an appearance in
person or through counsel in general sessions or any municipal court for the purpose
of continuing the matter or any other appearance in either court for any purpose
involving the offense.
See also State v. Ferrante, 269 S.W.3d 908, 912 (Tenn. 2008); State v. Tait, 114 S.W.3d 518, 522
(Tenn. 2003). “It is the ‘prosecution’ which must be commenced within [the limitations period], not
the finding of the indictment.” Hickey, 174 S.W. at 270. So long as the prosecution begins within
the prescribed limitations period, a subsequent indictment may issue despite any delay. Moreover,
in State v. Harris, 33 S.W.3d 767 (Tenn. 2000), this Court confirmed that the State had the broad
discretion to seek a second or superseding indictment on prior charges:
A superseding indictment is an indictment obtained without the dismissal of a prior
indictment. Where there has been no jeopardy on the first indictment, a grand jury
may return a new indictment against an accused even though another indictment is
pending. . . . Thus, the State may obtain a superseding indictment at any time prior
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to trial without dismissing the pending indictment and may then select the indictment
under which to proceed at trial.
Id. at 771 (citations omitted).
The long-standing rule of law is that a second or superseding indictment filed beyond the
statute of limitations is proper so long as the first indictment was pending and the charges are neither
broadened nor substantially amended. State v. Nielsen, 44 S.W.3d 496, 500 (Tenn. 2001); see also
Palmer v. State, 475 S.W.2d 189, 196 (Tenn. Crim. App. 1971). Further, the subsequent indictment
need not include “commencing facts” to establish that the prosecution was timely and initiated by
other of the statutory methods. Messamore v. Powell, 937 S.W.2d 916, 919 (Tenn. 1996); Nielsen,
44 S.W.3d at 499-500. Finally, and pertinent to the issue before us, Tennessee Code Annotated
section 55-10-403(a)(1)(A)(iii) provides that a determination of prior offenses for driving under the
influence does not qualify as a new offense, but as an enhanced sentence; therefore, the “second
phase of the proceeding relates only to punishment and does not add a new charge.” State v. Cottrell,
868 S.W.2d 673, 677 n.1 (Tenn. Crim. App. 1992) (citing State v. Ward, 810 S.W.2d 158 (Tenn.
Crim. App. 1991)). Thus, the second indictment of the Defendant, even though filed more than one
year after the date of the offense, was timely.6
Another proposition of law is worthy of note. In State v. Doe, 860 S.W.2d 38 (Tenn. 1993),
this Court observed that the purpose of the expunction statute “was to prevent a citizen from bearing
the stigma of having been charged with a criminal offense, where he was acquitted of the charge or
prosecution of the charge was abandoned.” Id. at 40 (quoting State v. Doe, 588 S.W.2d 549, 552
(Tenn. 1979), superseded by Act of April 18, 1980, 1980 Tenn. Pub. Acts 1305). We held “that
expunction should occur only when no further proceedings against an accused are possible or, if they
are, no further action is contemplated.” Id. Thus, when a charge has been dismissed without
prejudice and the statute of limitations does not bar further prosecution, a trial court should not grant
an order of expunction. See id. at 40-41.
In the Doe case, the General Sessions Court had dismissed a charge of driving under the
influence at the preliminary hearing. On the following day, the records were expunged pursuant to
order. Upon review, this Court acknowledged that the State could present the matter directly to the
grand jury regardless of the order expunging the prior records. In an opinion authored by Justice
Martha Craig Daughtrey, this Court ruled that the expunction order had “lost its legal efficacy” when
6
In State v. Seagraves, 837 S.W .2d 615 (Tenn. Crim. App. 1992), the appellant was indicted and tried on a
charge of second degree murder, but was convicted only of involuntary manslaughter, a lesser-included offense for which
the limitations period had expired eighteen years prior to the prosecution’s commencement. The prosecution also “did
not allege or make an effort to establish that the statute of limitations had been tolled based upon the appellant’s conduct
following the commission of the alleged offense.” Id. at 619. Accordingly, our Court of Criminal Appeals concluded
that “the trial court did not have subject-matter jurisdiction to try the appellant for the lesser included offense of
involuntary manslaughter,” and the conviction on that charge was a nullity. Id. at 621. The Defendant argues that this
holding is controlling; however, our determination that the first indictment was pending when the second was returned,
thereby tolling the one-year limitations period, precludes consideration of the principle established in Seagraves.
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the State continued proceedings against the defendant. The State was “free to prosecute the case .
. . as if the order had never been entered,” regardless of the State’s failure to object or appeal in the
initial expunction proceeding. Id. at 41.
Conclusion
Under these circumstances, the trial court properly took judicial notice of its own prior
proceedings. Because the first indictment was timely and pending at the time the grand jury returned
the second indictment, the one-year statute of limitations applicable to misdemeanors was tolled.
The order of expunction should not have been entered and is of no effect. The judgment of the trial
court is, therefore, affirmed. Costs of this appeal are assessed to the appellant, Neddie Mack
Lawson, and his surety, for which execution may issue if necessary.
___________________________________
GARY R. WADE, JUSTICE
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