IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1997 SESSION
January 8, 1998
Cecil W. Crowson
STATE OF TENNESSEE, * C.C.A. # 01C01-9610-CR-00433 Clerk
Appellate Court
Appellee, * SUMNER COUNTY
VS. * Hon. Jane W. Wheatcraft, Judge
TYRONE WATKINS, * (Certified Question of Law)
Appellant. *
For Appellant: For Appellee:
David A. Doyle Charles W. Burson
District Public Defender Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street Clinton J. Morgan
Gallatin, TN 37066 Counsel for the State
450 James Robertson Parkway
Nashville, TN 37243-0493
Thomas Dean
Assistant District Attorney General
113 West Main Street
Gallatin, TN 37066
OPINION FILED:__________________________
REVERSED AND DISMISSED
GARY R. WADE, JUDGE
OPINION
The defendant, Tyrone Watkins, was convicted on July 18, 1994, of
two Class A misdemeanors. While allowing pretrial jail credit, the trial court imposed
consecutive sentences of eleven months and twenty-nine days, the remainder of
which was to be served on probation. On February 16, 1996, a warrant was issued
which resulted in the revocation of probation.
The question of law certified for review is whether the probationary
term had expired prior to the commencement of the revocation proceeding. Rule
37(b)(2)(i), Tenn. R. Crim. P. We must reverse the judgment of the trial court; the
cause is dismissed.
One of the judgments of conviction provided for pretrial jail credit from
February 10 through July 18 of 1994, a period of five months and eight days. The
defendant contends that this jail credit effectively reduced the two consecutive
eleven-month, twenty-nine-day probationary sentences. The state insists that the
defendant does not receive the pretrial jail credit unless he is actually ordered to
serve the sentence in custody and thus the period of probation extended into July
1996, several months beyond when the warrant was issued.
The revocation warrant included allegations that the defendant had
violated the terms of his probation by being found guilty of driving on a revoked
license, by being convicted for facilitation of the possession of Schedule VI drugs,
and by failing to pay costs or restitution as ordered in the original judgment. The
defendant filed a motion to dismiss which the trial court eventually denied. The
defendant then pled guilty to having violated probation on the condition that he be
allowed to appeal this dispositive certified question of law.
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Trial courts are empowered to revoke suspended sentences. Tenn.
Code Ann. § 40-35-310. That statutory authority grants trial judges the discretion "to
commence the execution of the judgment as originally entered." Tenn. Code Ann. §
40-35-311(d). Further, the Sentencing Commission Comments to § 40-35-310
provide that upon revocation, the original sentence "can be placed into effect." See
also State v. Duke, 902 S.W.2d 424 (Tenn. Crim. App. 1995). A defendant is
released from probation, however, after his or her sentence has expired. The trial
court has no authority to revoke probation after the sentence has elapsed. State v.
Steven B. Mangrum, No. 01C01-9007-CC-00176 (Tenn. Crim. App., at Nashville,
Feb. 21, 1991). A probationary period beyond the sentence imposed is illegal and
subject to be set aside at anytime. State v. Jason C. Deyton, Jr., No. 234 (Tenn.
Crim. App., at Knoxville, Feb. 2, 1989). See State v. Burkhart, 566 S.W.2d 871
(Tenn. 1978) (holding that an illegal sentence may be set aside at any time).
The question to be addressed in this case, however, involves the
manner of calculating the pretrial jail credit:
Commencement of sentence--Credit for pretrial
detention and jail time pending appeal.--(a) When a
person is sentenced to imprisonment, the judgment of
the court shall be rendered so that such sentence shall
commence on the day on which the defendant legally
comes into the custody of the sheriff for execution of the
judgment of imprisonment.
***
(c) The trial court shall, at the time the sentence is
imposed and the defendant is committed to jail, the
workhouse or the state penitentiary for imprisonment,
render the judgment of the court so as to allow the
defendant credit on the sentence for any period of time
for which the defendant was committed and held in the
city jail or juvenile court detention prior to waiver of
juvenile court jurisdiction, or county jail or workhouse,
pending arraignment and trial. The defendant shall also
receive credit on the sentence for the time served in the
jail, workhouse or penitentiary subsequent to any
conviction arising out of the original offense for which the
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defendant was tried.
***
Tenn. Code Ann. § 40-23-101.
Our law requires that the pretrial jail credit diminish the sentence:
In imposing a misdemeanor sentence, the court shall fix
a specific number of months, days or hours, and the
defendant shall be responsible for the entire sentence
undiminished by sentence credits of any sort except for
credits authorized by § 40-23-101, relative to pretrial jail
credit, .... The court shall impose a sentence consistent
with the purposes and principles of this chapter.
Tenn. Code Ann. § 40-35-302(b).
The purpose of the pretrial jail credit statute is to treat those unable to
make bail in much the same manner as those that are. State v. Abernathy, 649
S.W.2d 285 (Tenn. Crim. App. 1983). "The legislature in its wisdom recognized an
injustice between the person of means who could make bond and the person who
could not and had to languish in jail." Id. at 286.
In State v. Vito Summa, No. 02C01-9411-CR-00254 (Tenn. Crim.
App., at Jackson, Dec. 28, 1995), app. denied, (Tenn., May 13, 1996), a panel of
our court ruled that after a period of "actual incarceration" on an eleven-month and
twenty-nine-day sentence, the trial judge could not sentence the defendant to a
probationary term longer than six months and twenty-two days, the balance of the
term. Slip op. at 5. The probationary period which was in excess of the total of
eleven months and twenty-nine days after the calculation of sentence credits was
held to be void.
Here, the defendant was convicted of Class A misdemeanors and
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could not be sentenced to more than eleven months, twenty-nine days for each
offense. Tenn. Code Ann. § 40-35-111(e)(1). Thus, for the conviction for which the
defendant was entitled to five months and eight days of jail credit, his probationary
term could be only so long as to allow an entire sentence of eleven months, twenty-
nine days. There is no authority for the trial court to order a sentence of eleven
months, twenty-nine days plus five months and eight days. According to our
calculations, the defendant's probationary term expired on or about February 8,
1996.
In general, the trial court may not impose a period of probation that
exceeds the sentence authorized by law. Because the sentence of the defendant
began at the time he was placed in jail, the trial court had no authority to revoke
probation after each of the two consecutive eleven-month, twenty-nine-day
sentences had expired.1
Accordingly, the judgment of the trial court is reversed and the cause
is dismissed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
1
The first eleven-month, twenty-nine-day sentence had expired over a year before the filing of
the probation violation warrant. Had the state been correct in its position, a revocation would have
affecte d only the se cond o f the two s entenc es. See State v. Jeffrey D. Hunter, No. 01C01-9608-CC-
00334 (Tenn . Crim. A pp., at Na shville, Oc t. 30, 1997 ).
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Curwood Witt, Judge
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