State v. Hunter

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE
FILED
September 7, 1999

Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, ) FOR PUBLICATION
)
Appellee, ) FILED: September 7, 1999
)
v. ) WILLIAMSON COUNTY
)
JEFFREY D. HUNTER, ) HON. CORNELIA A. CLARK
)
Appellant. ) No. 01S01-9806-CC-00118
)
)
) (Probation Revocation)

For the Appellant: For the Appellee:

John S. Colley, III John Knox Walkup
Columbia, Tennessee Attorney General & Reporter

Michael E. Moore
Solicitor General

Marvin E. Clements, Jr.
Assistant Attorney General
Nashville, Tennessee

OPINION

AFFIRMED BARKER, J.
 We granted this appeal by Jeffrey D. Hunter, the appellant, in order to address

issues pertinent to a trial court’s authority during probation revocation proceedings.

For the reasons provided herein, we hold that when a trial court has determined that a

probation violation has occurred, it possesses the authority to: (1) order incarceration;

(2) order the original probationary period to commence anew; or (3) extend the

remaining period of probation for as much as an additional two years. We further

conclude that a defendant is not entitled to credit on his or her sentence of

incarceration for any time served on probation prior to probation revocation and

reinstatement of the original sentence. The judgment of the Court of Criminal Appeals

is affirmed.

BACKGROUND

On September 3, 1991, the appellant pled guilty to reckless driving, failure to

appear, and two counts of possession of marijuana with the intent to sell. A

sentencing hearing was held on November 13, 1991, at which time the trial court

imposed consecutive two-year sentences for each marijuana conviction and then

immediately granted consecutive two-year probationary periods for each conviction.

The trial court also ordered the appellant to serve a consecutive one-year probationary

sentence for the failure to appear conviction and a concurrent six-month probationary

sentence for the reckless driving conviction. Thus, the total effective sentence for all

four convictions was five (5) years to be served on probation.

Approximately one week later, on November 21, 1991, a probation violation

warrant was issued against the appellant charging him with marijuana use. Following

a hearing on January 13, 1992, the appellant’s probation was revoked but then

reinstated.

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 Less than two years later, on February 18, 1993, a second probation violation

warrant was issued against the appellant based on charges filed against him for

aggravated assault. The appellant subsequently pled guilty to aggravated assault and

received a suspended eight-year sentence to be served consecutively to his previous

five-year sentence. Again, the trial court revoked the appellant’s previous probation

and then immediately reinstated the original probationary sentences. The trial court

also ordered the appellant incarcerated for seventy-five (75) days before being placed

back on probation. The appellant’s total effective sentence was, therefore, increased

to thirteen (13) years.

A third probation violation warrant was issued against the appellant on June 21,

1994, based on allegations of marijuana use and his arrest for driving under the

influence. As a result, on December 15, 1994, the trial court again revoked the

appellant’s probation and reinstated his original probation sentences. However, the

trial court ordered him to serve ninety (90) days in jail before placing him back on

probation.

On April 1, 1996, a final probation violation warrant was issued against the

appellant. The warrant was based upon the appellant’s use of alcohol, which was

specifically prohibited by the probationary rules, and his erratic behavior and threats

made to his family. Following yet another probation revocation hearing, on May 30,

1996, the trial court again revoked the appellant’s probation on all of his sentences

and ordered him to serve the following consecutive sentences: two (2) years for the

first drug conviction, two (2) years for the second drug conviction, one (1) year for the

failure to appear conviction, and eight (8) years for the aggravated assault conviction.

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Therefore, the total effective sentence was thirteen (13) years to be served in the

Department of Correction.1

On June 12, 1996, the appellant filed a motion to correct the sentence alleging

that he was incapable of understanding his actions at the time he violated his

probation and that two of his four probationary sentences had expired prior to the

institution of final probation revocation proceedings. The trial court denied the motion

and the Court of Criminal Appeals affirmed, concluding that the trial court possessed

the authority to revoke the appellant’s probation and to reinstate his original sentence.

In so doing the Court of Criminal Appeals held that the appellant was not entitled to

receive credit on his probationary sentence for time previously served on probation. 2

The appellant now requests this Court to reverse the lower courts.

ANALYSIS

The appellant first and primarily contends that he successfully completed the

two (2) consecutive two-year probation sentences for the felony drug convictions prior

to the institution of final revocation proceedings in 1996. He specifically argues that

the thirteen-year sentence imposed upon him following his final revocation hearing

should be reduced to a nine-year sentence to account for the completion of these

sentences. Based on the reasons outlined below, we affirm the judgment of the Court

1
The record indicates that during the final revocation proceedings, the appellant was sent to the
Vanderbilt Medical Center for an evaluation. The evaluation revealed that the appellant had a history of
manic-depressive disorder from which he had suffered a relapse due to the death of his wife, who
appare ntly died from a drug o verdos e. Following the evalua tion, the app ellant was then trans ferred to
the Dep artme nt of Co rrection’s S pecial Ne eds Fa cility pursuan t to Tenn . Code A nn. § 40- 35-314 (e).

2
In the appe al belo w, the interm ediat e cou rt also addr ess ed iss ues rega rding the a ppe llant’s
sanity at the time of his probation violations and his competency to stand trial at the time of his final
revocation hearing. The Court of Criminal Appeals held that the trial court met its obligation by
considering the appellant’s mental condition as mitigating evidence at the revocation hearing. The
interm ediat e cou rt furt her c onc luded that th e evid enc e did n ot pre pon dera te ag ains t the tr ial cou rt’s
findin g tha t the a ppe llant w as c om pete nt to s tand trial. T hos e issu es w ere n ot rais ed in th is app eal.

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of Criminal Appeals and the appellant’s thirteen-year sentence in the Department of

Correction.

Tennessee Code Annotated §§ 40-35-310 (1990) and 40-35-311 (1990) govern

the procedure for revocation of probation. If a trial court determines that a defendant

has violated the conditions of probation, it has the authority to revoke the defendant’s

probation and cause execution of the original judgment. Tenn. Code Ann. § 40-35-

311. Tennessee Code Annotated § 40-35-310 provides:

The trial judge shall possess the power, at any time within the
maximum time which was directed and ordered by the court for such
suspension, after proceeding as provided in § 40-35-311, to revoke
and annul such suspension, and in such cases the original judgment
so rendered by the trial judge shall be in full force and effect from
the date of the revocation of such suspension, and shall be executed
accordingly.

We agree with the appellant‘s argument that if a defendant successfully

completes a probationary sentence, the trial court is without authority to revoke

probation and order service of the original sentence. Tenn. Code Ann. § 40-35-310

(1990). However, in this case, the appellant failed to successfully complete his first

two-year probationary period prior to any of his probation revocations. Approximately

one week after the appellant was initially placed on probation, a violation warrant was

issued against him. Then, in February of 1993, a second probation violation warrant

was issued against the appellant. He was placed back on probation after the trial

court first revoked his probation. Probation was revoked again in November of 1994.

The second revocation was less than two years after the court had reinstated his

probation. Following reinstatement in December of 1994, the appellant’s probation

was revoked again on April 1, 1996, sixteen months following the previous

reinstatement. At the final revocation hearing in May 30, 1996, the trial court revoked

the appellant’s probation and imposed an effective thirteen-year sentence in the

Department of Correction.

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 The record clearly shows that the appellant failed to completely serve an entire

probationary period prior to any of his probation revocations. Before the appellant

could successfully complete his initial two-year probationary term, he repeatedly

violated the conditions of his probation. Each time when the trial court revoked the

appellant’s probation and then reinstated it, the appellant began serving his original

sentence anew. The trial court had the authority to revoke probation and order service

of the original sentence because he had failed to complete an entire probationary

period at the time the violation occurred. Tenn. Code Ann. § 40-35-310 (1990).

The appellant contends, however, that when probation is revoked and

reinstated, Tenn. Code Ann. § 40-35-308(c) sets a limit on a trial court’s authority to

order additional time to be served on probation. The appellant argues that the

language of section 40-35-308(c) reveals a legislative intent to prohibit a trial court

from imposing a probation sentence greater than two years. We disagree.

Tennessee Code Annotated § 40-35-308(c) provides the trial court with the

power to modify, remove, or release a condition of a defendant’s probation. The

statute in question provides:

Notwithstanding the actual sentence imposed, at the conclusion
of a probation revocation hearing, the court shall have the authority
to extend the defendant’s period of probation supervision for any
period not in excess of two (2) years.

Tenn. Code Ann. § 40-35-308(c). Under the statute, the trial court has the option to

extend the existing probationary period up to two additional years instead of imposing

the original sentence. The Sentencing Commission Comments suggest that section

40-35-308(c) was designed to address situations where a defendant violates probation

near the end of the probation term and reinstatement of the defendant’s original

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sentence would produce too harsh a result. The Sentencing Commission Comments

provide:

Subsection (c) addresses situations where a defendant violates
his or her probation near the end of the term, and instead of
ordering complete incarceration, a trial court might desire to
extend the defendant’s period of probation supervision. This
subsection permits such an extension for a period up to two years.

Tenn. Code Ann. § 40-35-308(Sentencing Commission Comments).

The appellant contends that section 40-35-308(c) was designed to prevent trial

courts from repeatedly revoking and reinstating a defendant’s original probation. We

disagree. Nothing in the text of section 40-35-308(c) prohibits a trial court from

causing execution of a defendant’s original sentence. Had the legislature intended for

the statute to limit a trial court’s authority in probation revocation proceedings, it could

have so provided in the text of the statute. It did not. Furthermore, the appellant’s

interpretation of section 40-35-308(c) overlooks the language in sections 40-35-310

and 40-35-311 stating that upon revocation a trial court has the authority to impose a

defendant’s original sentence. See Tenn. Code Ann. §§ 40-35-310,-311.

To summarize, upon revocation, section 40-35-308(c) provides a trial court with

an alternative to ordering incarceration or reinstating a defendant’s full original

sentence. Tenn. Code Ann. § 40-35-308(c); State v. Bowling, 958 S.W.2d 362, 363

(Tenn. Crim. App. 1997). However, the trial court also continues to possess the

authority to cause execution of the original judgment as it was originally entered. See

Tenn. Code Ann. § 40-35-310. Upon a finding that a defendant has violated the

conditions of probation, a trial court has the authority to cause execution of the

defendant’s original judgment as it was originally entered, Tenn. Code Ann. §§ 40-35-

310,-311, or to extend probation for a period up to an additional two years on the

remaining period of the original probation. Tenn. Code Ann. § 40-35-308(c); Bowling,

958 S.W.2d at 363.

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 Finally, we address whether the appellant is entitled to credit on his

probationary sentence for time spent on probation prior to the revocation. The

appellant asserts that he should receive credit for a total of three (3) years, eleven (11)

months and eighty-seven (87) days served on various probationary periods between

revocation and reinstatements. 3 According to his argument, his thirteen-year sentence

should be reduced by that amount. We disagree.

The crux of the appellant’s argument is that reinstating the original probationary

term every time probation is revoked produces a result which is too harsh for some

defendants. He contends that a sentence to be served on probation should be

credited in the same manner in which sentences of incarceration are credited for time

served in confinement.4 Otherwise, according to the appellant, all defendants could

face potential lifetimes on probation regardless of the time actually served on

probation.

This Court recently held that the time a defendant serves on probation is not

counted toward the completion of his or her sentence unless a defendant successfully

completes the entire term of probation. State v. Taylor, 992 S.W.2d 941 (Tenn. 1999);

see also Young v. State, 539 S.W.2d 850, 855 (Tenn. Crim. App. 1976). To hold

otherwise would allow a defendant to serve his or her probation sentence in

increments of time chosen at the defendant’s convenience. Furthermore, a probation

sentence should not be credited in the same manner as a sentence of incarceration

3
The appellant seeks credit for one year, five months and twenty-nine days for the period of
Octob er 28, 19 91, to Apr il 26, 1993, w hen his p robation w as revo ked. H e argue s that he is e ntitled to
credit for one year, three months and forty-two days for the period from July 10, 1993, when probation
was reinstated, to November 21, 1994, when probation was revoked. The appellant also contends that
he is entitled to credit of one year, three months and sixteen days for the period from December 15,
1994, when his probation was reinstated, through April 1, 1996, when the final probation revocation was
issued.

4
The record indicates that he was incarcerated seventy-five days when his probation was
revoked in 1993 and ninety days when his probation was revoked in 1994. The Court of Criminal
Appea ls credited the appe llant’s sente nce to re flect the tim e he se rved in co nfinem ent.

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because it is not the equivalent of an incarceration sentence. Probation is a

significantly less severe restraint of liberty than incarceration. A defendant should not

be rewarded with a reduction on his or her sentence for abusing the opportunity to

serve the sentence without being subjected to total confinement. We therefore hold

that the appellant is not entitled to credit on his sentence for time served on probation

prior to the revocation.

CONCLUSION

To summarize, we hold that at the conclusion of a probation revocation hearing,

a trial court can: (1) order incarceration; (2) cause execution of the judgment as it was

originally entered; or (3) extend the remaining probationary period for a period not to

exceed two years. We also hold that a defendant is not entitled to credit on his or her

sentence for time served on probation unless the defendant successfully completes

the entire probation term. The judgment of the Court of Criminal Appeals is affirmed.

Costs are to be assessed to the State of Tennessee.

___________________________
WILLIAM M. BARKER, JUSTICE

CONCUR:

ANDERSON, C.J.
DROWOTA, BIRCH, HOLDER, J.J.

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