State of Tennessee v. Brenda Starks ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
OCTOBER SESSION 1997
December 9, 1997
Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 01-C-01-9611-CR-00481
)
) Wilson County
v. )
) James O. Bond, Judge
)
) (Sentencing)
BRENDA STARKS, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
J. Robert Hamilton John Knox Walkup
Attorney at Law Attorney General & Reporter
225 East Market Street 500 Charlotte Avenue
Lebanon, TN 37087 Nashville, TN 37243-0497
Elizabeth B. Marney
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Tom P. Thompson, Jr.
District Attorney General
203 Greentop Street
Hartsville, TN 37074-0178
Robert N. Hibbett
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087-3609
OPINION FILED:______________________________
JUDGMENT OF TRIAL COURT REVERSED AND CAUSE DISMISSED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Brenda Starks (defendant), appeals as of right from the judgment of
the trial court affirming the sentence, as amended, imposed by the General Sessions
Court of Wilson County. After the defendant entered a plea of guilty to passing a worthless
check, a Class A misdemeanor, she was sentenced to serve 364 days at 100% in the
Wilson County Jail. Her entire sentence was suspended and she was placed on
unsupervised probation. The General Sessions Court subsequently revoked the probation,
and she appealed to the Criminal Court for Wilson County. The trial court affirmed the
judgment of the General Session Court, but amended the judgment. The amended
judgment provided for confinement in the Wilson County Jail for 364 days at 75%. In this
court, the defendant contends:
[T]he sentence she was given by the Criminal Court for Wilson
County, Tennessee, an eleven (11) month, twenty-nine (29)
day sentence at seventy-five percent (75%), for the
misdemeanor offense of passing a worthless check, T.C.A. 39-
14-121, was excessive, in that the Court did not sentence
Defendant pursuant to the applicable provisions of the
Tennessee Criminal Sentencing Reform Act of 1989, T.C.A.
40-35-101, et. seq.
After a thorough review of the record, the briefs submitted by the parties, and the laws
applicable to this case, it is the opinion of this court the judgment of the trial court must be
reversed and this cause dismissed because the defendant has served the entire sentence
prior to the institution of the revocation proceedings in the General Sessions Court.
The defendant was arrested pursuant to an arrest warrant for passing a worthless
check in the amount of $56.99 to Al’s Food Value on the 3rd day of December, 1994. The
arrest warrant was issued on February 15, 1995. On March 1, 1995, the defendant
entered a plea of guilty to the passing of a worthless check as alleged in the warrant. The
General Sessions judge sentenced the defendant to serve 364 days in the county jail at
100%. The service of the sentence was suspended, and, as a condition of probation, the
defendant was required to pay the amount of the worthless check to the victim and pay the
court costs. The defendant failed to pay either amount. On September 19, 1995, a
garnishment was issued. The defendant’s employer advised the General Sessions clerk’s
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office the defendant had taken bankruptcy. On May 15, 1996, an “Order to Show Cause”
was entered and served upon the defendant. The order stated in part: “If you fail to
satisfactorily show cause as herein ordered, you may be found guilty of contempt of court,
your probation revoked, and you may be ordered to serve the entire sentence adjudged
against you in this cause.” The General Sessions judge revoked the defendant’s probation
and ordered her to serve the 364 days at 100% on or about May 29, 1996. The defendant
subsequently appealed the judgment of the General Sessions Court to the Criminal Court
for Wilson County.
The offense of passing a worthless check under the sum of $500 is a Class A
misdemeanor. Tenn. Code Ann. §§ 39-14-121 (f) and -105(1). The maximum punishment
for a Class A misdemeanor is a fine of $2,500 and confinement for eleven months and
twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1) (Repl. 1997). In this case, the
General Sessions Court imposed the maximum sentence of confinement for eleven
months and twenty-nine days. A fine was not assessed as part of the sentence.
It is undisputed the General Sessions Court sentenced the defendant on March 1,
1995. Therefore, the defendant’s sentence expired on February 28, 1996 since the
defendant had been on probation during the period between March 1, 1995, and February
28, 1996. The probation revocation proceeding was not commenced until May 15, 1996,
the date the show cause order was filed. The General Sessions Court’s order revoking
the probation is not dated. However, it appears the hearing and subsequent revocation
occurred on or about May 29, 1996, the date set forth in the show cause order. The
defendant made a $250 bond on May 31, 1996.
It is obvious that the defendant’s sentence had expired approximately two and one-
half months before the revocation proceeding was instituted by the filing of the show cause
order. Consequently, the General Sessions Court did not have jurisdiction to revoke the
defendant’s probation.
According to the applicable statute, a “trial judge shall possess the power, at any
time within the maximum time which was directed and ordered by the court for such
suspension . . . to revoke and annul such suspension.” Tenn. Code Ann. § 40--35-310
(Repl. 1997) (emphasis added). While a garnishment was issued by the General Sessions
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Court Clerk on September 19, 1995, the garnishment did not toll the running of the
defendant’s sentence. Only the issuance of a revocation warrant -- the show cause order
in this case -- can toll the running of a sentence and prevent the sentence from expiring
before a revocation hearing can be conducted. Allen, 505 S.W.2d at 717.
In short, the defendant’s sentence had expired before the revocation proceedings
were instituted. Thus, the General Sessions Court did not have jurisdiction to revoke the
defendant’s probation and order her to serve the entire sentence. Given these
circumstances, the defendant is entitled to the reversal of the trial court’s judgment and the
dismissal of the revocation proceedings.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
WILLIAM M. BARKER, JUDGE
______________________________________
JOE G. RILEY, JUDGE
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