IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1999 SESSION
October 8, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 01C01-9812-CC-00485
Appellee, )
) BEDFORD COUNTY
VS. )
) HON. WILLIAM CHARLES LEE,
JEROME PATRICK LYONS, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
DONNA HARGROVE PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
A. JACKSON DEARING, III MARK E. DAVIDSON
Assistant Public Defender Asst. Attorney General
P.O. Box 1119 Cordell Hull Bldg., 2nd Fl.
Fayetteville, TN 37334 425 Fifth Ave., North
Nashville, TN 37243-0493
GREGORY D. SMITH
One Public Square, Suite 321 MIKE McCOWN
Clarksville, TN 37040 District Attorney General
(On Appeal Only)
WEAKLEY E. BARNARD
Asst. District Attorney General
Marshall County Courthouse
Suite 407
Lewisburg, TN 37091
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On October 19, 1995, the defendant was convicted by a jury of speeding
and sentenced to a term of twenty days on probation. On direct appeal, this Court
affirmed the defendant’s conviction. On February 23, 1998, the Tennessee Supreme
Court denied the defendant permission to appeal.1 On March 16, 1998, a probation
violation warrant was filed. After an evidentiary hearing, the trial court revoked the
defendant’s probation. The defendant now appeals. After a review of the record and
applicable law, we affirm the judgment of the trial court.
The defendant contends that the revocation of his probation was
unwarranted under the facts and circumstances of this case. Specifically, he argues
that he only received twenty days of probation, and as the revocation warrant was not
filed until three years after his sentence was imposed, his sentence had expired
before the revocation warrant was issued. According to the defendant, these facts
render the “whole revocation process . . . moot.” However, this issue was not raised
at the trial court level and is, therefore, waived. See State v. Lunati, 665 S.W.2d 739,
749 (Tenn. Crim. App. 1983). In addition, we hold that when a defendant convicted of
a misdemeanor and sentenced to probation appeals his conviction to the appellate
courts of this state, his sentence is automatically stayed pending the outcome of his
appeal. Cf. McInturff v. State, 338 S.W.2d 561, 563 (Tenn. 1960) (holding that where
a defendant does not secure his release with a confession of judgment, he still has a
right of appeal and, “where the appeal is in the nature of a writ of error, it suspends
1
Accord ing to the de fendan t, he subs equen tly petitioned the U nited State s Supre me C ourt.
Howe ver, there is no eviden ce in the re cord tha t the United States S uprem e Cou rt issued a stay with
regard to the defendant’s case pursuant to 28 U.S.C.A. §2101(1994). In his reply brief, the defendant
argues that “any ac tion on this ju dgm ent sho uld have been au toma tically stayed pen ding the d ecision to
grant or deny certiorari by the U.S. Supreme Court. The revocation warrant was filed prematurely.”
How ever , the d efen dan t has failed to cite any au thority t hat w ould s upp ort this argu me nt. As suc h, this
issue is w aived. Ru les of the C ourt of C riminal A ppeals o f Tenn essee 10(b); State v. Killebrew, 760
S.W .2d 228, 231 (Tenn. Crim . App. 1988).
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the judgment at law . . . so that no execution could be issued until the appeal were
disposed of.”). In the absence of such a rule, most appeals regarding misdemeanor
convictions would be rendered moot by the time they reached this Court because the
sentence would likely have already expired. As such, when the defendant in the case
at bar appealed his misdemeanor conviction, his probationary sentence was stayed
while his appeal was pending. Since the defendant appealed his sentence to the
Tennessee Supreme Court, his sentence was stayed until that court issued a
mandate with regard to his appeal. On February 23, 1998, the Tennessee Supreme
Court denied the defendant permission to appeal, and a mandate in accordance with
that order was issued on March 6, 1998. As such, the defendant’s twenty day
sentence had not yet expired when the probation revocation warrant was issued on
March 16, 1998.
The defendant next contends that the trial judge abused his discretion
by failing to recuse himself from the probation revocation proceeding. The defendant
argues that recusal was proper because the trial judge made inappropriate comments
to the jury at the defendant’s original trial, directed the probation office to file a
probation revocation warrant against the defendant, and ordered the defendant to
serve his sentence in jail, without bond, after the defendant’s probation was revoked.
We first note that a trial judge should recuse himself whenever he has
any doubt as to his ability to preside impartially in a criminal case or whenever his
impartiality can reasonably be questioned. State v. Hines, 919 S.W.2d 573, 578
(Tenn. 1995). The decision of whether to grant a recusal rests within the discretion of
the trial judge and will not be overturned on appeal unless clear abuse of that
discretion appears on the face of the record. State v. Smith, 906 S.W.2d 6, 11 (Tenn.
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Crim. App. 1995).
In the case at bar, the record does not establish that the trial judge was
biased or prejudiced in any way. In reference to the comments deemed
“inappropriate” by the defendant, the trial judge stated on the record that the remarks
he made to the jury were in reference to his disagreement with the law, not the
defendant. The trial judge further stated that he had “no personal animosity against
[the defendant].” We also note that it is within a trial court’s authority to cause a
probation revocation warrant to be issued. See T.C.A. § 40-35-311(a). Based on the
foregoing, we find that the trial judge did not abuse his discretion in refusing to recuse
himself from the defendant’s probation revocation hearing. This issue is without merit.
We note that the evidence at the probation revocation hearing
established that the defendant violated the terms of his probation. The trial court,
therefore, had the authority to revoke his probation. See T.C.A. § 40-35-311(d). The
record does not indicate that the trial judge abused his discretion in exercising such
authority.
Accordingly, we affirm the judgment of the court below. 2
JOHN H. PEAY, Judge
2
W e note tha t several o ther issue s are rais ed in a pro se app ellate brief filed b y the defen dant.
Howe ver, a pers on m ay not proc eed with c ounse l and pro s e at the sa me tim e. State v. Burkhart, 541
S.W .2d 3 65, 3 71 (T enn . 197 6). T here fore , the p ro se appe llate b rief an d the issue s rais ed th erein will
not be co nsidere d by this Co urt.
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CONCUR:
DAVID H. WELLES, Judge
JOHN EVERETT W ILLIAMS, Judge
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