IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
OCTOBER 1995 SESSION FILED
July 16, 1997
STATE OF TENNESSEE, )
) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, ) No. 03C01-9501-CR-00017
)
) Washington County
v. )
) Honorable Lynn W. Brown, Judge
)
PHILLIP BOWLING, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
David F. Bautista Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Deborah B. Huskins George Linebaugh
Assistant Public Defender Assistant Attorney General of Tennessee
142 E. Market Street 450 James Robertson Parkway
Johnson City, TN 37601 Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
and
Joe C. Crumley, Jr.
Assistant District Attorney General
Washington County Courthouse
P.O. Box 38
Jonesborough, TN 37659
OPINION FILED:____________________
AMENDED JUDGMENT VACATED; REMANDED
Joseph M. Tipton
Judge
OPINION
The defendant appeals as of right from three, concurrent twelve-year
sentences that the Washington County Criminal Court imposed upon him after it
revoked his suspended sentence. He contends that the trial court erroneously
enhanced the three, ten-year sentences it previously imposed in this case by applying
improperly two enhancement factors and ignoring an applicable mitigating factor.
Because we conclude that the trial court was without the authority to increase the
defendant’s sentence, we vacate the amended judgments of the trial court and order
that the defendant serve the original ten-year, concurrent sentences.
On May 7, 1992, the defendant pled guilty to three cocaine-related Class
B felonies and received three, concurrent ten-year sentences in the custody of the
Department of Correction. Judgments of conviction were entered on that date and he
was transferred to the Department of Correction and began serving his time. The
Department of Correction placed him in the boot camp program, see T.C.A. § 40-20-
201, -207, and then, effective April 13, 1993, placed him on probation for the remainder
of his sentences. See T.C.A. § 40-20-206.
After issuing a probation revocation warrant in August 1993, the trial court
entered a series of orders. The first stated that the defendant was to serve ten years in
the community corrections program, from October 15, 1993 to October 15, 2003, and
listed conditions of his release. The second order revoked the defendant’s probation
and ordered that he serve ten years in the Department of Correction but noted, in a
footnote, that the defendant was placed on the alternative community corrections
program. The third order provided for the defendant’s immediate release and stated
that he was to be placed in the community corrections program.
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In May 1994, the trial court issued a warrant alleging that the defendant
again violated his probation. After a hearing, the trial court revoked the defendant’s
suspended sentence and sentenced him to twelve years in the Department of
Correction for each of the three offenses. The trial court cited the defendant’s history of
criminal behavior, inability to abide by conditions of a sentence involving release into
the community, and lack of mitigating factors. The trial court entered amended
judgments that reflect that the defendant’s sentences were increased upon revocation
of a community corrections sentence. Although we agree with the trial court that
enhancement of the defendant’s sentence would have been appropriate had the court
been revoking a sentence under the Tennessee Community Corrections Act of 1985,
see T.C.A. § 40-36-106(e)(3), it was not proper under the facts of this case.
We begin our analysis by recognizing the distinction between the
revocation of a community correction sentence and a probation revocation. When a
trial court revokes a community corrections sentence under the Tennessee Community
Corrections Act of 1985, it has the authority to “resentence the defendant to any
appropriate sentencing alternative, including incarceration, for any period of time up to
the maximum sentence provided for the offense committed, less any time actually
served in any community-based alternative to incarceration.” T.C.A. § 40-36-106(e)(3).
By contrast, a trial court that determines that a probation violation has occurred can
cause execution of the original judgment as it was originally entered, see T.C.A. § 40-
35-310, -311, or can modify the defendant’s conditions of supervision, including
extending the defendant’s probationary period for up to two years. See T.C.A. § 40-35-
308.
In this case, the defendant initially received a ten-year sentence in the
Department of Correction. Once the defendant was transferred to the Department of
Correction, the trial court lost jurisdiction. See T.C.A. § 40-35-212(d). Pursuant to
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T.C.A. § 40-20-206, when the Department of Correction placed the defendant on
probation for the remainder of his ten-year sentence, the trial court had jurisdiction to
use the procedures set forth in T.C.A. § 40-35-311 to revoke the probation. Although
the trial court properly ordered that the defendant’s probation be revoked and that he
serve his ten-year sentence in the Department of Correction, see T.C.A. § 40-35-
311(d), it also ordered that the defendant serve ten years in the community corrections
program, from October 15, 1993 until October 15, 2003.
It is apparent that the trial court intended to convert the defendant’s ten-
year sentence into a community corrections sentence. However, neither the
Community Corrections Act nor the statutes dealing with probation authorize a court to
impose a new sentence under the Act after a defendant has partially served his
sentence in the Department of Correction.
Although the trial court lacked jurisdiction to impose a community
corrections sentence when it determined that the defendant violated his probation, it did
have the authority to order the defendant’s participation in the community corrections
program as a condition of his continuing on probation. See T.C.A. § 40-35-108
(allowing more onerous probation conditions resulting from a revocation hearing);
T.C.A. § 40-36-106(f) (providing for use of a community corrections program as a
condition of probation). Thus, the orders the trial court entered in 1993 effectively
resulted in the modification of the defendant’s conditions of probation, not the
imposition of a community corrections sentence.
When the trial court revoked the defendant’s suspended sentence in
August of 1994, the defendant was serving the remainder of his original ten-year
sentence on probation, and the trial court was to proceed under the probation
revocation statutes. The trial court had the authority to commence execution of the
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original judgment as it was originally entered, see T.C.A. § 40-35-310, -311, or the
authority to modify the defendant’s conditions of supervision and to extend his
probationary period for up to two years, see T.C.A. § 40-35-308, but it did not have the
authority to increase the defendant’s original sentence.
Accordingly, the amended judgments of conviction of the trial court are
vacated and the case is remanded to the trial court for reinstatement of the ten-year
sentences imposed in the original judgments of conviction.
Joseph M. Tipton, Judge
CONCUR:
John H. Peay, Judge
David G. Hayes, Judge
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