State of Tennessee v. Michael Eugene Tolle

03/19/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
December 19, 2017 Session

STATE OF TENNESSE v. MICHAEL EUGENE TOLLE

Appeal from the Criminal Court for Knox County
No. 100047 Bob McGee, Judge

No. E2017-00571-CCA-R3-CD

In this appeal, the State challenges the trial court’s decision to apply the amended version
of Code section 39-14-105, which provides the grading of theft offenses, to modify the
class of the defendant’s conviction offense and the corresponding sentence following the
revocation of the defendant’s probation. No appeal right lies for the State pursuant to
either Tennessee Rule of Appellate Procedure 3, Code section 40-35-402, or Tennessee
Rule of Criminal Procedure 35 under the circumstances in this case. Because we have
concluded that the trial court exceeded its authority by the application of the amended
version of Code section 39-14-105, however, we have elected to treat the improperly-
filed appeal as a petition for the common law writ of certiorari. Accordingly, we vacate
the order of the trial court and remand the case for proceedings consistent with this
opinion.

Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellant, State of Tennessee.

Mark Stephens, District Public Defender; and Jonathan Hartwell (on appeal) and Christy
Murray (at hearing), Assistant District Public Defenders, for the appellee, Michael
Eugene Tolle.
 OPINION

On August 8, 2012, the defendant pleaded guilty to one count of theft of
property valued at more than $500 but less than $1,000 and one count of theft of property
valued at $500 or less. In keeping with the defendant’s plea agreement with the State, the
trial court imposed concurrent sentences of two years and 11 months and 29 days,
respectively, to be served in the Tennessee Department of Correction (“TDOC”). The
trial court also applied 61 days’ pretrial jail credit.1 On December 22, 2012, TDOC
placed the defendant on determinate release, see T.C.A. § 40-35-501(a)(3) (2006)
(“Notwithstanding any other provision of law, inmates with felony sentences of two (2)
years or less shall have the remainder of their original sentence suspended upon reaching
their release eligibility date.”), with a probation expiration date of May 9, 2014.2

A probation violation warrant issued on June 7, 2013, alleging that the
defendant had violated the terms of his release by failing to inform his probation officer
before changing his address, failing to allow a home visit by his probation officer, failing
to report as required, and failing to pay probation supervision fees in an amount of $225.
According to the defendant, he was taken into custody by the South Carolina Department
of Corrections (“SCDC”) on May 7, 2014, and remained in SCDC custody until
December 23, 2016, when he returned to Jefferson County, Tennessee, pursuant to a
detainer warrant to answer charges of burglary and theft, both Class D felonies. The
defendant pleaded guilty to the Jefferson County charges in exchange for a three-year
sentence, and the Jefferson County Criminal Court granted the defendant credit for the
time he served in SCDC.

Following the entry of his pleas in Jefferson County, the defendant was
transferred to Knox County to answer the violation warrant in this case. The defendant
moved to dismiss the warrant arguing that the State’s failure to prosecute the warrant
while he was incarcerated in SCDC violated his right to a speedy trial and deprived him
of the opportunity to earn credit against the sentence in this case while serving his SCDC
sentence. The defendant also asked that, because the legislature amended Code section
39-14-105, the theft grading statute, effective January 1, 2017, the trial court should
reduce the conviction class of his conviction of theft of property valued at more than
$500 but less than $1,000 from a Class E felony to a Class A misdemeanor as provided
by amended Code section 39-14-105. The defendant argued that the terms of Code
section 39-11-112 entitled him to the more lenient penalty provided by the amendment.

1
The defendant received credit for the periods between June 6, 2012, and June 15, 2012, and
between June 16, 2012, and August 7, 2012.
2
The order placing the defendant on determinate release is not included in the record on appeal.
We glean these facts from the probation revocation order.
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The defendant also asked the trial court to grant him credit for the time he was
incarcerated in SCDC.

The State opposed the defendant’s motion, arguing that no speedy trial
violation had occurred and that the defendant was entitled to neither the more lenient
sentence provided by amended Code section 39-14-105 nor credit for the time he spent
incarcerated in SCDC.

At the February 23, 2017 revocation hearing, the defendant acknowledged
that he violated the terms of his probationary sentence but argued that the warrant should
be dismissed because the State failed to timely prosecute in violation of his constitutional
right to a speedy trial. The defendant also argued that, should the trial court deny the
motion to dismiss, he should be “resentence[d] . . . consistent with the change in law with
theft offenses.” The defendant asserted that the trial court had the authority to resentence
the defendant under the terms of Tennessee Rule of Criminal Procedure 35 “which allows
the reduction of a sentence . . . within 120 days after . . . probation is revoked which is
what we have here.” Arguing that Code section 39-11-112, the criminal savings statute,
entitled him to the more lenient sentence, the defendant asked that his conviction offense
of theft of property valued at more than $500 but less than $1,000 be reclassified as a
Class A misdemeanor consistent with amended Code section 39-14-105.

The State argued that no speedy trial violation had occurred because it was
the defendant’s action in acquiring criminal convictions in another state that caused the
delay in this case. The State asserted that the defendant was not entitled to resentencing
consistent with the new theft grading statute because Code section 39-11-112 had no
application following a probation revocation.

The trial court rejected the defendant’s speedy trial claim on grounds that
“there cannot be a violation of speedy trial right because there’s no trial pending.” The
trial court also found that the State of Tennessee was under no obligation “to leap into
action simply because [the defendant] commits crimes in other states and picks up other
sentences.” The trial court found that the defendant violated the terms of his probation
“by picking up the crimes in another state and by being convicted and serving his
sentence.”3 The court denied the defendant’s request for credit for time served in SCDC
toward the sentence in this case. With regard to the defendant’s request for a sentence
reduction, the trial court found:

3
These were not the grounds alleged in the violation warrant. Because the defendant did not
object to the use of a basis for revocation that might be construed as beyond the notice given, and because
he presented no lack-of-notice argument to the trial court or on appeal to this court, he has waived any
claim that he received no notice of the grounds for revocation. Stamps v. State, 614 S.W.2d 71, 73 (Tenn.
Crim. App. 1980).
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 The Court is under no obligation to resentence him and
would be well within its rights to simply impose the original
sentence [of] two years and remand him. However, it is true
that our legislature has in more recent times decided that the
proper penalty for this offense would be 11 months, 29 days.

So in the spirit of complying with the wishes of the
legislature, the contemporary . . . legislature, this Court will
resentence him to 11 months and 29 days in the custody of
the Knox County Sheriff’s Department and a service rate of
75 percent. The Court orders that he receive credit for the
time he served in the Tennessee jail, Knox County jails on
these offenses.

The trial court reiterated its holdings in a written order. 4

The State appealed “pursuant to Tenn. Code Ann. § 40-35-402” the trial
court’s decision to resentence the defendant under the amended version of Code section
39-14-105. The defendant did not appeal.

I. Jurisdiction

As in any other appeal before this court, our first concern is whether this
court is authorized to hear the case. The State initiated the appeal in this case by filing a
notice of appeal “pursuant to Code section 40-35-402.” That statute provides the State
the right to appeal certain sentencing decisions of the trial court “within the same time
and in the same manner as other appeals in criminal cases”:

(a) The district attorney general in a criminal case may appeal
from the length, range or manner of the service of the
sentence imposed by the sentencing court. The district
attorney general may also appeal the imposition of concurrent
sentences. In addition, the district attorney general may also
appeal the amount of fines and restitution imposed by the
sentencing court. An appeal pursuant to this section shall be
taken within the same time and in the same manner as other
appeals in criminal cases. The right of the appeal of the state

4
The record does not indicate whether the trial court entered an amended judgment form reflecting
the modified class of the conviction offense and the corresponding sentence of 11 months and 29 days.
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 is independent of the defendant’s right of appeal.

(b) An appeal from a sentence is limited to one (1) or more of
the following conditions:

(1) The court improperly sentenced the defendant to the
wrong sentence range;
(2) The court granted all or part of the sentence on probation;
(3) The court ordered all or part of the sentences to run
concurrently;
(4) The court improperly found the defendant to be an
especially mitigated offender;
(5) The court failed to impose the fines recommended by the
jury;
(6) The court failed to order the defendant to make reasonable
restitution; or
(7) The sentence is inconsistent with the purposes or
considerations of sentencing set out in §§ 40-35-102 and 40-
35-103.

§ 40-35-402(a)-(b).

“When a statute affords a state or the United States the right to an appeal in
a criminal proceeding, the statute will be strictly construed to apply only to the
circumstances defined in the statute.” State v. Meeks, 262 S.W.3d 710, 718 (Tenn. 2008)
(citing Carroll v. United States, 354 U.S. 394, 400 (1957); State v. Adler, 92 S.W.3d 397,
400 (Tenn. 2002)). As our supreme court explained, at common law the State had no
right to appeal in a criminal case under any circumstances. Meeks, 262 S.W.3d at 718.
Later, many state legislatures and Congress granted to the prosecution limited rights of
appeal via specific constitutional or statutory provisions. See United States v. Sanges,
144 U.S. 310, 312 (1892) (“[T]he State has no right to sue out a writ of error upon a
judgment in favor of the defendant in a criminal case, except under and in accordance
with express statutes, whether that judgment was rendered upon a verdict of acquittal, or
upon the determination by the court of a question of law.”); see also United States v.
Martin Linen Supply Co., 430 U.S. 564, 568 (1977); United States v. Wilson, 420 U.S.
332, 336 (1975). Even where the right of appeal was granted to the prosecution, courts
continued to emphasize that such provisions must be construed or applied narrowly to
avoid a general grant of jurisdiction for state appeals. Meeks 262 S.W.3d at 718; see also
Arizona v. Manypenny, 451 U.S. 232, 246 (1981); State v. Reynolds, 5 Tenn. 110, 111
(Tenn. 1817) (“It is our duty as faithful expositors of the law, to preserve it from all
encroachment by implication or construction, for in so doing we guard the honor and the
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peace of our countrymen.”). Indeed, “‘appeals by the Government in criminal cases are
something unusual, exceptional, not favored,’ at least in part because they always
threaten to offend the policies behind the double-jeopardy prohibition.” Will v. United
States, 389 U.S. 90, 96 (1967) (quoting Carroll, 354 U.S. at 400). “Both prudential and
constitutional interests contributed to this tradition. The need to restrict appeals by the
prosecutor reflected a prudential concern that individuals should be free from the
harassment and vexation of unbounded litigation by the sovereign.” Manypenny, 451
U.S. at 245. When construing the right of the State to appeal in a criminal case,
reviewing courts must do so with an understanding that the granting authority, the
legislature, “clearly contemplated . . . that [the prosecution] would be completely unable
to secure review of some orders having a substantial effect on its ability to secure
criminal convictions.” Will, 389 U.S. at 98 n.5.

With these considerations in mind, we turn to the question whether any
portion of the State’s appeal in this case fits any of the bases for appeal enunciated in
Code section 40-35-402.

The State argues that the trial court’s erroneous application of amended
Code section 39-14-105 caused the court to impose a sentence within the wrong
sentencing range, thus giving rise to an appeal as of right under Code section 40-35-
402(b)(1). The State’s reliance on Code section 40-35-402(b)(1), however, is inapt. The
amendment to Code section 39-14-105 altered only the relationship between the value of
property taken during a theft and the class of the resulting offense. The amendment did
not alter the law setting sentencing ranges. Sentencing range and offense class are not the
same thing. Both offenses, see T.C.A. § 40-35-110, and offenders, see id. § 40-35-105 to
-109, are classified by the legislature, and the Code then provides a corresponding range
of punishment for each combination of offense and offender class. See id. § 40-35-112.
“[W]hen interpreting statutes,” this court follows “the Latin maxim of expressio unius est
exclusio alterius, meaning ‘the expression of one thing implies the exclusion of all things
not mentioned.’” Adler, 92 S.W.3d at 400 (quoting Limbaugh v. Coffee Med. Center, 59
S.W.3d 73, 84 (Tenn. 2001)). The question in this case is not the appropriate range
classification but whether the defendant’s conviction of theft of property valued at more
than $500 but less than $1,000 should be classified as a Class E felony, pursuant to the
law in effect at the time of the crime, or a Class A misdemeanor, pursuant to amended
Code section 39-14-105. Because Code section 40-35-402 does not provide the State the
right to appeal the offense classification, the trial court’s resolution of this question,
regardless whether it was correct, does not avail the State of a statutory right to appeal
under the terms of Code section 40-35-402. Construing this statutory grant of a State
appeal narrowly, as we are compelled to do, we conclude that Code section 40-35-402
does not provide the State the right to appeal the trial court’s decision in this case.

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 Similarly, Rule 3 of the Tennessee Rules of Appellate Procedure provides a
right of appeal to the State in limited circumstances:

In criminal actions an appeal as of right by the [S]tate lies
only from an order or judgment entered by a trial court from
which an appeal lies to the Supreme Court or Court of
Criminal Appeals: (1) the substantive effect of which results
in dismissing an indictment, information, or complaint; (2)
setting aside a verdict of guilty and entering a judgment of
acquittal; (3) arresting judgment; (4) granting or refusing to
revoke probation; or (5) remanding a child to the juvenile
court. The [S]tate may also appeal as of right from a final
judgment in a habeas corpus, extradition, or post-conviction
proceeding.

Tenn. R. App. P. 3(c). The trial court’s ruling in this case did not have “the substantive
effect of . . . dismissing an indictment, information, or complaint,” did not set aside the
verdict of the jury, did not arrest the judgment, and did not “remand[] a child to the
juvenile court.” Rule 3(c) does permit the State to appeal the trial court’s order “granting
or refusing to revoke probation,” but the grant or refusal to revoke probation is not the
subject of the State’s appeal in this case. Tennessee Rule of Appellate Procedure 3(c)
does not provide the State an appeal as of right from the decision to revoke probation.
Additionally, this case does not arise from “a final judgment in a habeas corpus,
extradition, or post-conviction proceeding.” Because the State’s claim on appeal does not
fit any of the categories provided in Rule 3(c), the State has no stand-alone appeal as of
right pursuant to Tennessee Rule of Appellate Procedure 3.

During the revocation hearing, the defendant argued that Tennessee Rule of
Criminal Procedure 35 granted the trial court authority to reduce his sentence following
the revocation of his probation. That rule provides:

(a) Timing of Motion. The trial court may reduce a sentence
upon motion filed within 120 days after the date the sentence
is imposed or probation is revoked. No extensions shall be
allowed on the time limitation. No other actions toll the
running of this time limitation.

(b) Limits of Sentence Modification. The court may reduce a
sentence only to one the court could have originally imposed.

(c) Hearing Unnecessary. The trial court may deny a motion
-7-
 for reduction of sentence under this rule without a hearing.

(d) Appeal. The defendant may appeal the denial of a motion
for reduction of sentence but shall not be entitled to release on
bond unless already under bond. If the court modifies the
sentence, the state may appeal as otherwise provided by law.

Tenn. R. Crim. P. 35. Although the trial court reduced the defendant’s sentence, the
record does not clearly establish that the court did so under the color of authority granted
by Rule 35. Indeed, the State argues that Rule 35 has no application because the
defendant did not file a written motion for relief under Rule 35.5 Moreover, although
Rule 35 does permit the trial court to reduce the defendant’s sentence within 120 days of
a probation revocation, the rule limits the sentence reduction “to one the court could have
originally imposed.” Tenn. R. Crim. P. 35(b); see also Tenn. R. Crim. P. 35, Advisory
Comm’n Comm’t. (“The modification permitted by this rule is any modification
otherwise permitted by the law when the judge originally imposed sentence including but
not limited to a transfer to the workhouse or probation to otherwise eligible defendants.
If there is a modification, the [S]tate may appeal.”). In this way, any “action of the trial
court on the Rule 35 motion relates back to the date of sentencing . . . so as to require any
modification to comply with the law existing as of that date.” State v. Bilbrey, 816
S.W.2d 71, 76 (Tenn. Crim. App. 1991).

When the defendant was originally sentenced in 2012, theft of property
valued at more than $500 but less than $1,000 was a Class E felony punishable by a
sentence of no less than one nor more than two years. See T.C.A. § 39-14-105 (2012); id.
§ 40-35-112 (“A Range I sentence is [f]or a Class E felony, not less than one (1) nor
more than two (2) years.”). Because Rule 35 provided the trial court no authority to
change the conviction class of the offense or to reduce the defendant’s sentence to a term
less than that available at the time of the original sentencing in this case and especially
because the record does not clearly establish that the trial court was acting under the color
of the authority granted by Rule 35, we will not consider the appeal in this case as an
appeal provided by that rule.

This court may, under certain circumstances, treat an improperly filed
appeal as an extraordinary appeal pursuant to Rule 10 of the Tennessee Rules of
Appellate Procedure. See State v. Norris, 47 S.W.3d 457, 463 (Tenn. Crim. App. 2000);
State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). Rule 10 provides:

5
Although we need not decide in this case whether Rule 35 requires the filing of a written motion,
we have no doubt that filing a written motion is the best practice, particularly given the strict time
limitation in Rule 35.
-8-
 An extraordinary appeal may be sought on application and in
the discretion of the appellate court alone of interlocutory
orders of a lower court from which an appeal lies to the
Supreme Court, Court of Appeals or Court of Criminal
Appeals: (1) if the lower court has so far departed from the
accepted and usual course of judicial proceedings as to
require immediate review, or (2) if necessary for complete
determination of the action on appeal as otherwise provided
in these rules. The appellate court may issue whatever order is
necessary to implement review under this rule.

Tenn. R. App. P. 10(a). Before this court will grant an extraordinary appeal, however,
the appellant must establish that: (a) “the ruling of the court below represents a
fundamental illegality,” (b) “the ruling constitutes a failure to proceed according to the
essential requirements of the law,” (c) “the ruling is tantamount to the denial of either
party of a day in court,” (d) “the action of the trial judge was without legal authority,” (e)
“the action of the trial judge constituted a plain and palpable abuse of discretion,” or (f)
“either party has lost a right or interest that may never be recaptured.” State v.
Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980) (finding that the principles required for
the common law writ of certiorari are applicable to applications for extraordinary appeal
under Rule 10). Application of Rule 10 in this case is inappropriate, however, because
the State appeals from the final judgment of the trial court. The plain language of Rule
10 limits its application to the “interlocutory orders” of the trial court.

Where there is no statutory or rule-based appeal as of right, this court may
treat the State’s improperly filed appeal as of right as a petition for the common-law writ
of certiorari. “The common-law writ of certiorari is ‘of ancient origin and has been
characterized as extraordinary, remedial, revisory, supervisory, and prerogative.’” State
v. Lane, 254 S.W.3d 349, 354 (Tenn. 2008) (quoting State v. Johnson, 569 S.W.2d 808,
812 (Tenn. 1978); Tenn. Cent. R.R. v. Campbell, 75 S.W. 1012 (Tenn. 1903)). “A writ of
certiorari is an order from a superior court to an inferior tribunal to send up a complete
record for review, so that the reviewing court can ascertain whether the inferior tribunal
has exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily.” Lane, 254
S.W.3d at 354 (citations omitted). An extremely limited avenue of relief, the writ of
certiorari is available “to correct ‘(1) fundamentally illegal rulings; (2) proceedings
inconsistent with essential legal requirements; (3) proceedings that effectively deny a
party his or her day in court; (4) decisions beyond the lower tribunal’s authority; and (5)
plain and palpable abuses of discretion.’” Lane, 254 S.W.3d at 355 (quoting Willis v.
Tenn. Dep’t Corr., 113 S.W.3d 706, 712 (Tenn. 2002)). The writ may also lie “‘[w]here
either party has lost a right or interest that may never be recaptured.’” Id. (quoting
Johnson, 569 S.W.2d at 815)). “[R]eviewing courts should not grant a petition for a
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common-law writ of certiorari to ‘(1) inquire into the intrinsic correctness of the lower
tribunal’s decision, (2) reweigh the evidence, or (3) substitute their judgment for that of
the lower tribunal.’” Lane, 254 S.W.3d at 355 (quoting Robinson v. Clement, 65 S.W.3d
632, 635 (Tenn. Ct. App. 2001) (internal citations omitted)).

A statutory provision for review by the writ of certiorari is codified at
Tennessee Code Annotated section 27-8-101:

The writ of certiorari may be granted whenever authorized by
law, and also in all cases where an inferior tribunal, board, or
officer exercising judicial functions has exceeded the
jurisdiction conferred, or is acting illegally, when, in the
judgment of the court, there is no other plain, speedy, or
adequate remedy. This section does not apply to actions
governed by the Tennessee Rules of Appellate Procedure.

T.C.A. § 27-8-101. Although a provision for a writ of certiorari has been codified, our
case law is clear that “[t]he writ of certiorari does not owe its existence to constitutional
provision or statutory enactment. It is a common-law writ, of ancient origin, and one of
the most valuable and efficient remedies which come to us with that admirable system of
jurisprudence.” Tenn. Cent. R.R., 75 S.W. at 1012; see also State v. L.W., 350 S.W.3d
911, 915 (Tenn. 2011). “The inclusion of a provision in our original constitution for
writs of certiorari, Tenn. Const. art. VI, §§ 6-7 (1796), was to guarantee the availability
of the writ in civil cases, as opposed to the previously exclusive use of the writ in
criminal cases.” L.W., 350 S.W.3d at 915 (citing Tenn. Cent. R.R., 75 S.W. at 1012-13).
Thus, the procedural requirements for filing a petition for writ of certiorari in a civil case
are inapplicable “on petitions for writs of certiorari in criminal cases.” L.W., 350 S.W.3d
at 916.

In this case, the trial court’s ruling is not fundamentally illegal and does not
amount to a “plain and palpable” abuse of the court’s discretion. Additionally, because
the trial court held a hearing on the issue at which both parties were allowed to fully
participate, the proceedings were not “inconsistent with essential legal requirements” and
did not deny either party a “day in court,” and neither party “lost a right or interest that
may never be recaptured”. Because the trial court’s application of amended Code section
39-14-105 to the defendant’s case and the resulting modification of the defendant’s
sentence exceeded the court’s authority, as will be discussed more fully below, we have
elected to treat the State’s improperly-filed appeal as of right as a petition for the
common law writ of certiorari.

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 II. Applicability of Amended Code section 39-14-105

The State contends that the trial court erred by concluding that Code section
39-11-112 entitled the defendant to the lesser sentence provided for by the 2016
amendment to Code section 39-14-105 because the amendment was not a sentencing
provision and because, in any event, nothing authorized the trial court to resentence the
defendant following the revocation of his probation. The defendant asserts that the trial
court did not err.

Because our determination of the propriety of the trial court’s ruling
depends upon our interpretation of the various statutes and rules at play, our review is de
novo with no presumption of correctness afforded to the ruling of the trial court. See,
e.g., State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016).

The most basic principle of statutory construction is “‘to ascertain and give
effect to the legislative intent without unduly restricting or expanding a statute’s coverage
beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678
(Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative
intent is determined ‘from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that
would extend or limit the statute’s meaning.’” Osborn v. Marr, 127 S.W.3d 737, 740
(Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). “When the
statutory language is clear and unambiguous, we apply the plain language in its normal
and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State
v. Nelson, 23 S.W.3d 270, 271 (Tenn. 2000)). “It is only when a statute is ambiguous
that we may reference the broader statutory scheme, the history of the legislation, or other
sources.” In re Estate of Davis, 308 S.W.3d 832, 837 (Tenn. 2010) (citing Parks v. Tenn.
Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998)).

On April 27, 2016, the governor signed into law a bill designated by the
legislature as the Public Safety Act of 2016 (“the Act”). The Act amends the law for the
issuance of orders of protection; alters the penalty for a third or subsequent conviction of
domestic assault; adds “the results of an offender’s validated risk and needs assessment”
to the list of factors that the trial court must consider during sentencing; adds a new
category of offenses that come with an 85 percent release eligibility percentage; adds a
new section to Title 40, Chapter 28 that creates a graduated system of sanctions for
violating a sentence involving release into the community; and amends Code section 39-
14-105 by modifying the grading of theft offenses. 2016 Pub. Acts, c. 906. As is
relevant to this case, the Act provides:

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 Tennessee Code Annotated, Section 39-14-105(a), is
amended by deleting the subsection in its entirety and
substituting instead the following language:

(a) Theft of property or services is:

(1) A Class A misdemeanor if the value of the property or
services obtained is one thousand dollars ($1,000) or less;

(2) A Class E felony if the value of the property or services
obtained is more than one thousand dollars ($1,000) but less
than two thousand five hundred dollars ($2,500);

(3) A Class D felony if the value of the property or services
obtained is two thousand five hundred dollars ($2,500) or
more but less than ten thousand dollars ($10,000);

(4) A Class C felony if the value of the property or services
obtained is ten thousand dollars ($10,000) or more but less
than sixty thousand dollars ($60,000);

(5) A Class B felony if the value of the property or services
obtained is sixty thousand dollars ($60,000) or more but less
than two hundred fifty thousand dollars ($250,000); and

(6) A Class A felony if the value of the property or services
obtained is two hundred fifty thousand dollars ($250,000) or
more.

2016 Pub. Acts, c. 906, § 5. The Act provides two different effective dates:

For the purpose of promulgating rules, policies, forms, and
procedures and making necessary provisions for the
implementation of this act, this act shall take effect upon
becoming a law, the public welfare requiring it. For all other
purposes, this act shall take effect January 1, 2017, the public
welfare requiring it.

Id., § 17. Because the amendment to Code section 39-14-105 does not affect the
“promulgating [of] rules, policies, forms, and procedures and making necessary
provisions for the implementation of this act,” the January 1, 2017 effective date applies.
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 “Generally, a criminal offender must be sentenced pursuant to the statute in
effect at the time of the offense.” State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994)
(citing State v. Reed, 689 S.W.2d 190, 196 (Tenn. Crim. App. 1984); 24 C.J.S. Criminal
Law, § 1462 (1989)). Code section 39-11-112, however, provides an exception to this
general rule:

When a penal statute or penal legislative act of the state is
repealed or amended by a subsequent legislative act, the
offense, as defined by the statute or act being repealed or
amended, committed while the statute or act was in full force
and effect shall be prosecuted under the act or statute in effect
at the time of the commission of the offense. Except as
provided under § 40-35-117, in the event the subsequent act
provides for a lesser penalty, any punishment imposed shall
be in accordance with the subsequent act.

T.C.A. § 39-11-112 (emphasis added). As our supreme court has explained, “the general
provisions of § 39-11-112 and the principles against retroactive application of statutes
mandate that an offense committed under a repealed or amended law shall be prosecuted
under that law, unless the new law provides for a lesser penalty.” State v. Cauthern, 967
S.W.2d 726, 747 (Tenn. 1998) (citing Smith, 893 S.W.2d at 919; State v. Brimmer, 876
S.W.2d 75, 82 (Tenn. 1994)).

Against this backdrop, we must determine whether the exception embodied
in Code section 39-11-112 applies to amended Code section 39-14-105 and whether, if it
does apply, Code section 39-11-112 entitles the defendant to the lesser sentence provided
by the statutory amendment even though the sentence modification in this case came
about following the revocation of the defendant’s probation.

The State first argues that the exception in Code section 39-11-112 has no
application in this case because Code section 39-14-105, in any form, is not a sentencing
statute. We disagree. Code section 39-14-105 “provides the punishment for the offenses
of theft. These offenses are punished according to the value of the property or services
obtained.” T.C.A. § 39-14-105, Sentencing Comm’n Comm’t (emphasis added). In
1989, the legislature replaced the common law offenses of “embezzlement, false
pretense, fraudulent conversion, larceny, receiving or concealing stolen property, and
other similar offenses,” id. § 39-14-101, into a “new generic offense of theft,” id. § 39-
14-101, Sentencing Comm’n Comm’t; see also id. § 39-14-101 (“Conduct denominated
as theft in this part constitutes a single offense . . . .”). Code section 39-14-103 provides
the elements of the generic theft offense: “A person commits theft of property if, with
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intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.” Id. § 39-14-103(a). Property is
defined as “anything of value, including, but not limited to, money, real estate, tangible
or intangible personal property, including anything severed from land, library material,
contract rights, choses-in-action, interests in or claims to wealth, credit, admission or
transportation tickets, captured or domestic animals, food and drink, electric or other
power.” Id. § 39-11-106. In most theft cases,

“Value”:

(A) Subject to the additional criteria of subdivisions
(a)(36)(B)-(D), “value” under this title means:

(i) The fair market value of the property or service at the
time and place of the offense; or

(ii) If the fair market value of the property cannot be
ascertained, the cost of replacing the property within a
reasonable time after the offense;

....

(C) If property or service has value that cannot be ascertained
by the criteria set forth in subdivisions (a)(36)(A) and (B), the
property or service is deemed to have a value of less than fifty
dollars ($50.00);

Id. § 39-11-106(36)(A),(C). By applying these statutes, we see that so long as the State
establishes that the defendant deprived the owner of “property,” it will necessarily have
established that the defendant took a thing of value and vice versa. “Nothing in [Code
section] 39-14-103 which defines the offense of theft requires the [S]tate to prove the
specific value of the property taken. Rather, the [S]tate merely has to introduce evidence
from which a jury could conclude that the property has some value.” State v. Hill, 856
S.W.2d 155, 156 (Tenn. Crim. App. 1993) (Baldwin v. State, 33 Tenn. (1 Sneed) 411
(1853)); see also State v. Charles Cox, No. W2010-00129-CCA-R3-CD, slip op. at 5
(Tenn. Crim. App., Jackson, Dec. 13, 2010) (“While the [S]tate did not present evidence
regarding the value of the items, the jury was free to infer that the items had some value,
which is sufficient to sustain the misdemeanor theft of property conviction.”).

When the State establishes a specific value for the property taken, Code
section 39-14-105 supplies a penalty to be imposed that is commensurate with the value
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as established by the evidence. When the State fails, or elects not, to present proof of
specific value, the Code provides a default value of less than $50. Consequently, the
specific value of the property taken is not an element of the generic theft offense.6

Because Code section 39-14-105 provides the penalty for theft based upon
the value of the property taken, any amendment to that statute that lessens the penalty
falls squarely within the “exception” to Code section 39-11-112. The amendment at issue
in this case does exactly that. As is applicable in this case, the amendment provides that
the theft of property valued at more than $500 but less than $1,000, the value as alleged
by the State, is now a Class A misdemeanor rather than a Class E felony. Clearly, the
new act provides for a lesser penalty than the previous act.

Having determined that Code section 39-11-112 is generally applicable to
amended Code section 39-14-105, we must next determine whether the Act can be
applied in the defendant’s case even though he was resentenced following the revocation
of his probation. The State argues that it cannot. The defendant, of course, contends that
it can. We agree with the State.

Unlike the “revocation of a community corrections sentence,” when “the
trial court exercises the same discretion in resentencing as did the initial sentencing
court,” Carpenter v. State, 136 S.W.3d 608, 612 (Tenn. 2004) (citing T.C.A. § 40-36-
106(e)(2), (e)(4) (2003)), the options of the trial court are limited following the
revocation of probation. See State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App.
1997). Upon revoking a sentence of probation, “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.” State v. Hunter, 1
S.W.3d 643, 648 (Tenn. 1999). When the trial court revokes a defendant’s probation, any
action it takes thereafter relates back to the sentence previously imposed. Code section
39-11-112 “has never been interpreted to apply to convictions and sentences which were
already received when a subsequent act or amendment provided for a lesser penalty.”
State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 877 (Tenn. Crim. App. 1992) (citing
T.C.A. § 1-3-101; Stinson v. State, 344 S.W.2d 369 (Tenn. 1961)).

6
We also observe that the gravamen of the Public Safety Act of 2016 is the amendment of various
sentencing provisions and that the legislature identifies the subject of HB2576, which became the Public
Safety Act of 2016, as “sentencing.” See Tennessee House Journal, 2016 Reg. Sess. No. 33 (“*House
Bill No. 2576 -- Sentencing - As introduced, enacts the ‘Public Safety Act of 2016.’ - Amends TCA Title
36, Chapter 3, Part 6; Title 39, Chapter 13, Part 1; Title 39, Chapter 14, Part 1; Title 40, Chapter 28; Title
40, Chapter 35 and Title 41, Chapter 1, Part 4. by *McCormick, *Brooks K, * Lamberth.”).

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 As indicated above, Rule 35 permits the trial court, upon motion of the
defendant filed within 120 days of the order revoking probation, to modify the
defendant’s sentence. Under that rule, however, the trial court “may reduce a sentence
only to one the court could have originally imposed.” Tenn. R. Crim. P. 35(b).

No statute or rule, including Code section 39-11-112, permits the trial court
to alter the class of the conviction offense following the revocation of probation.
Because the trial court exceeded its authority by doing so in this case, we have elected to
treat the State’s improperly-filed appeal as of right as a petition for the common law writ
of certiorari and vacate the order of the trial court modifying the defendant’s conviction
from a Class E felony with a sentence of two years to a Class A misdemeanor with an 11-
month and 29-day sentence.

Conclusion

Because the trial court erred by applying the amended version of Code
section 39-14-105 following the revocation of the defendant’s probation, we vacate the
11-month and 29-day sentence imposed by the trial court and remand the case for
proceedings consistent with this opinion.

_________________________________
JAMES CURWOOD WITT, JR., JUDGE

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