970 S.W.2d 516 | Tenn. Crim. App. | 1998
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED AT NASHVILLE JANUARY SESSION, 1998 February 24, 1998 Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9704-CC-00134 ) Appellee, ) ) MAURY COUNTY V. ) ) ) HON. JIM T. HAMILTON, JUDGE
CHLOE RAINEY CLARK, ) ) Appe llant. ) (REVO CATION OF PR OBATIO N) FOR THE APPELLANT: FOR THE APPELLEE: WILLIAM C. BARNES, JR. JOHN KNOX WALKUP 13-14 Pu blic Square Attorney General & Reporter P.O. Box 552 Columbia, TN 38402-0552 DARYL J. BRAND
Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN COLLEY COLLEY AND COLLEY 710 North Main Street Columbia, TN 38401 (Spe cial Pro secu tor at T rial) T. MICHAEL BOTTOMS District Attorn ey Ge neral LARRY NICKELL, JR. and LEE BAILEY Assistant District Attorney General P.O. Box 1619 Columbia, TN 38401-1619
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION The Defen dant, Ch loe Rain ey Clark, a ppeals as of right fro m the trial court’s order revoking her probation and requiring her to serve her five (5) year sentence in the Department of Correction. We affirm the ju dgme nt of the trial co urt.
Effective March 6, 1989, Defendant was placed o n probation for a period of five (5) years following guilty pleas to numerous felony convictions for passing worthless checks. In October 1989, a probation violation warrant was issued, alleging that Defendant had new criminal charges placed against her in three (3) counties. Probation was revoked on December 6, 1989 and Defendant was ordered to begin serving her sentence in incarceration. On May 2, 1990, the trial court ordered that Defendant serve her sentence in the Community Corrections Program. On September 11, 1991, the trial court entered an order transferring Defendant back to supervised probation with the Department of Correction and th is order specifically stated that the probationary sentence would expire on March 7, 1994.
A petition to revoke probation was filed January 28, 1994, based upon a violation tha t Defend ant had been a rrested fo r DUI a nd driving on a revoked license on January 9, 1994. Even though there was testimony at the revocation hearing that the trial court disposed of this probation violation warrant by ordering Defendant to perform twenty (20) hours of community service work under the auspices of the Department of Correction, there is no order in the record reflecting that particular disposition. The January 28, 1994 probation violation warrant was amended on June 7, 1995 by adding an additional probation violation that Defendant
-2- was arrested on new criminal charges of DUI and vehicular assault. Testimony at the revocation hearing reflects that this latest arrest occurred May 26, 1995. The record indicates that Defendant was injured in the automobile wreck which led to the most recent crim inal charg es, failed to a ppear in court at least once, and the revocatio n hearin g was fina lly held in De cemb er 1996 .
Defendant maintained in the trial court, and continues to argue on appe al, that she had performed the twenty (20) hours of public service work during 1994. She argues that the trial court’s disposition of the original January 1994 probation violation mandated that her probation would end and the January 1994 revocation warrant would be dismissed upon completion of the twenty (20) hours of public service work.
There was proof introduced at the revocation hearing that Defendant had performed twenty (20) hou rs of public service work at Highland P ark Eleme ntary Scho ol. However, this particular school was not one of the approved contractors or vendors on a list used by the public service caseworker for the Department of Correction. In a letter dated Septem ber 18, 1995, the secretary of Hig hland Park Elemen tary Schoo l sent a typed letter to the Defendant’s probation officer that states in full, “Chloe Clark did 20 hours of service at Highland Park School last spring.” On September 25, 1995, the same secretary sent a handwritten letter to the probation officer which states in part “Chloe Clark completed 20 hrs of community service at Highland P ark Schoo l this past school yea r 94-95.”
Also introduced as exhibits at trial were copies o f letters sent by the probation officer to Defendant. The first one advised her that as of September 21, 1994, she had not yet completed the twenty (20) hours of public service work ordered by the court. Another letter was sent stating that as of January 24, 1995, the twenty (20) hours of public service work had not been completed. Also introduced at the hearing was a March 24 , 1995 me mo from the public service w ork project coordinator to the probation officer stating that Defendant had not reported. Finally, on April 18, 1995, the probation officer sent Defendant a letter advising her to contact the probation officer by April 24, 1995 to discuss Defendant’s failure to complete her twenty (20) hours of public service work.
In mak ing its ruling, the trial court specifically found that expiration of Defendant’s probation was stayed when the January 1994 violation warrant was filed and that her probation was still in effect on May 26, 1995 when Defendant committed the offenses of DUI and vehicular assault. Defendant argues that the proof introduced at trial shows conclusively that she was off of probation at the time of the May 1995 criminal offenses, as she had c omp leted h er twen ty (20) h ours o f public service work.
In State v. Lewis , 917 S.W.2d 251 (Tenn. Crim. App. 1995 ), this court held: The trial court m ay exercis e its authority over a suspended sentence “at any time within the maximum time which was directed and ordered by the court for such suspension.” Tenn. Code Ann. § 4 0-35-31 0. If a petition to revoke is initiated within the term of the sentence, any limitation of the tim e with in wh ich to ac t is tolled.
Lewis, 917 S.W .2d at 256 (citations o mitted) (emp hasis adde d). Notwithstanding the probation officer’s testimony that the January 1994 warrant would be dismissed upon Defendant perfor ming twenty (20) ho urs of p ublic service work, there is not an order in the record reflecting this disposition by the trial court. There is no order in the record reflecting any disposition of the January 1994 probation violation warrant, and its amendment of June 1995, except for the December 1996 order revoking probatio n. W e can conclude only that the June 1995 amendment to the January 1994 vio lation warra nt was a ppropria te because the time period fo r filing a violation w arrant wa s tolled. See Lewis , 917 S.W .2d at 256 .
The original pro bation viola tion warra nt was filed prior to expiration of the original term of probation, and the trial court thus had the authority to revoke the probation after expira tion of the o riginal term of the prob ation. W e hold th at Defendant maintained her status of being subject to all of the terms and conditions of probation until the trial court ru led on the violation warrant and any timely filed amen dmen ts thereto.
Our court has previously held that a defendant’s probation can be revoked as a result of criminal offenses occurring after sentencing but prior to the beginning of a probationary term of senten ce involving split confine ment. See State v. Stone, 880 S.W .2d 746, 748 -49 (Tenn . Crim. App. 19 94). Thus, it certainly stands to reaso n that th e trial court has the authority to revoke probation for a criminal offense which occurs after expiration of the original term of probation but during a period of time when a warrant allegin g a viola tion of p robatio n is pe nding . In this particular case, we do not have to address the issue of the reasonableness of the delay. Even if the revo cation hearin g had been held in a more timely fashion, then the trial court would have had the au thority to extend De fendant’s prob ation for a period not in excess of two (2) years. See Tenn. C ode Ann . § 40-35-308 (c). Furthermore, Defendant did not object to the trial court’s proceedings and disposition
-5- of the case on the precise issue of a denial of her right to a speedy hearing of the probatio n violation w arrant.
Accordingly, the judgment of the trial court is affirmed. ____________________________________ THOMAS T. W OODALL, Judge
CONCUR:
___________________________________ DAVID H. WELLES , Judge ___________________________________ JERRY L. SMITH, Judge