### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs M ay 21, 2003
STATE OF TENN ESSEE v. KENNETH NOLA N HUMPHRIES

Direct Appeal from the Criminal Court for K nox County Nos. 44241, 51652, 51824, 57097, 57768 Ray L. Jenkins, Judge

No. E2002-01255-CCA-R3-CD September 9, 2003

Defend ant, Kenneth

Nolan Humphries, appeals the trial court's revoc ation of probation. Defendant
was separately

indicted for three counts of Class D theft. On September 17, 1993, Defendant entered guilty pleas to all three charges, and the trial c ourt sentenced him to serve three consecutive sentences of four y

ears ea ch and or

dered him t o pa y restitution. Defenda nt’s sentences were suspended, and he was placed on probation for twelve y ears. A probation violation warrant was filed and later amended. The revocation warra nt was dismissed, and the trial court or dered D efenda

nt to complete a drug and alcohol rehabilitation p ro gram. Subsequently , a second probation violation warrant was filed and later amended to include additiona l alleg ations. On

April16, 1997, Defendant pled guilty to two more cha rges of theft and re ceived two six-year se ntences to be served
concurr ently with each other and consecutively to Defendant’s previous twelve-y ear sentence, for
a total effective s e ntence of eighteen y ears. The trial court ordered that Def endant’s sentence be supervisedby the Community Alternatives to Prison Program (CAPP), to expire on April 16, 2015. A warrant for violation of CAPP was filed. Def endant w as order

ed to ser ve the re mainder of his sentence on regular probation. A fourth probation violation warr ant was filed. Follo wing a h earing, the trial court found that Defendant had violated the conditions of probation and or dered Defendant to serve the remainder of his sentence in confinement. Defendant appeals the trial court’s decision. After reviewing the rec ord, we affirm the judgment of the trial court in par t and reverse in part. Tenn. R. App. 3 Appeal as of Right; Judgment of the Trial Court Affirmed in Part, Revers ed in Par

t and Remanded.

T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined.

Mark E. Stephens, District Public Defender; Robert C. Edwards, Assistant Public Defender, for the appella nt, Kenne th Nolan H

umphries

. Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L . Bledso e, Assista nt Attorne

y General ; Randall Eugene Nichols, D istrict At

torney Genera l; Zane Scarlet t, Assista nt Dis trict Attorney General, for the appellee, the State of Te nnessee.-2- OPINION

On May 6, 1991, Def

endant was indicted for theft of propert y , a Class D

felony , in case 44241. Defend ant was la ter indic ted for tw o addition al counts of theft, on May 18, 1993, in case 51652, and on June

1, 1993, in

case 51824. On September 17, 1993, Defendant entered guilty pleas to all three charges, and

the trial court sentenced Defendant to four y ears probatio n on eac h count, to be served

consecutively, r

esulting in an effective sentence of twelve yea

rs on probation. The trial court also ordered Defendant to pay restitution in the amount of $9,287.00.

On May 11, 1994, a

warrant for violation of probation was filed in cases 44241, 51652, and 51824 based on new arrests for DUI and theft of property on O ctober 9, 1993, and March 18, 1994. Defendant

was again indicted for the offense of theft on November 29, 1994, in case 57097, and on February 6, 1995, in c ase 577 68. On February 16, 1995, the probation violation warrant in cases 44241, 51652, and 51824 wa s amende d to includ e additio nal viola

tions. On March 28 , 1995, Defendant

was ordered to enter an alcohol and drug rehabilitation program. The probation violation warrant was dismissed on September 7, 1995, and Defenda nt was placed on intensive probation.

A second warrant for violation of probation was filed in cases 44241, 51652, and 51824 on March13, 1996, alleging failure to pay fees, court costs, and

restitution. That warrant was amended on May 9, 1996, to include other violations. On April 16, 1997, Defendant pled guilty to the theft cha rges in cases 57097 and 57768. He was sentenced to six y ears for each charg e, to be serve d
concurr ently with eachother, but consecutively to his previous twelve-ye ar sentence, resulting in an effectivesentence of eighteen y ears. The trial court revoked Defe ndant’s probatio n in cases 44241, 51652, and 51824, andordere d Defen dant’s or iginal s entence

to be “put

into full force and effect.” The trial court al so ordered Defendant to serve his sentenc e in the Community Alternatives to Prison Program (CAPP). Additionally, the tria l court ordered Defendant to pay $6,500 in restitution.

A warrant for violation of the CAPP program was filed on May 23, 1997, alleg ing possession and use of al cohol and

controlled subst ances, f ail ure to obe

y curfew, failure

to pay court co sts, failure to perform community servic e, and failureto pay fee s. The trial court revoked Defendant’s community

alternatives sentence on Februar y 9, 199 8, an d ordered that his September 17, 1993 sentence be “put into full force and effect.” How ever, the t rial court found that Defendant had comple ted 178 days in the Knox County Sheriff’s Department Drug Prog ram, and ordered Def

endan t to continue serving his sentence in th e CAPP program until it expired on April 16, 2015. On December

4, 1998, the trial court ordered that Defendant be placed

on regular probation, but that the conditions imposed by the CAPP sentence from April 16, 1997, re mained in effect.

Another probation violation warrant was filed on July 8, 1999, alleging that De fendant was arrested for assault and failed to report t he arre st. The wa

rrant wa s amende d on July 22, 1999, t

o includ e conv ictions for DUI, third offense , and driving on a revoked license. This war rant was dismissed on December 13, 1999.-3-

A fo urth warrant for violation of probation was filed on Febr uary 1, 2002. Follo wing a hearin g, the trial court revoked Defendant’s proba tion on May 23, 2002, and orde redDefend ant to serve the original sentence in confine ment, crediting Defend ant with 71 2 day s served in confinement.

At the May 23, 2002, p

robation revoca tion hear ing, Pam S i l ano testif

ied that sh

e becam e Defendant’s probation officer in November of 2000. Defendant was required to report to Ms. Silano every two months. He

reported in April of 2001, and he failed to report again until April of 2002. Ms. Silano learned that

Defendant had been incarce rated in South Carolina on different charge s. At the hearing, defense counsel stated, “ We do not cont est th at he [went to South Carolina] without permission.” Defendant

had been on probation in South Carolina for fail ure to pa y sa les taxes. H

is probationary

period began in 1992, before he was indicted on the cha

rges in the case s in this app eal. Defendant’s p robation

in South Carolina had been revoked, and Defenda nt was required to serve nine mon ths in confine

ment. Def

endant w as in jail i n South Car olina fro m June 30, 200 1, until February of 2002. Ms. Silano s ent a ce rtified l etter to D efenda

nt in South Ca

rolina, d irecting him to report to

her on F ebruar y 6, 2002. A pr

obation vi ola tion warrant was filed in Tennessee on February 1, 2002. Defendant reported to Ms. Silano on April 1, 2002, and was arrested for violation of probation. Defend ant had a lso faile d to pay

probatio n fees a

nd court c osts owed since April of 2001. Ms. Silano t

estified that Def endant ow ed $5,920

in court c osts, but Defend ant had pa id restitution in full.

Defend ant

testified at the revocation hearing. He testified that at the time he entered the guil ty pleas in th

is case, he was on

probatio n in South Ca

rolina fo r a convi ction for

fail ure to pa y sales taxes. Defendant further testified that he rece ived a telephone call from his mother stating that his South Carolina probation officers had been looking f or him. Defendant drove to South Carolina the followin g day . Defen dant stated that he k new he w as supposed to get p ermission from his probation officer in Tennessee before leaving the state, but he did not attempt to cont a ct her. Defendant

testifie d that the

last time he repor

ted to his p

robation office r in Tenne ssee wa s in April of 2001. Defendant said that he was arrested in South Carolina on May 28, 2001. He also testified that he directed his mother to call Ms. Silano a couple of day s later to report his whereabouts.

Defendant

co ntends that there was insu fficient evidence to support the trial court’s revoca tion of his probation. If a trial court finds by a preponderance of the evidenc e that a defendant has violated a conditi on of his probation, then the trial court may r evoke probation. Tenn. Code Ann. § 40-35-311(e) (Supp. 2002). We review the trial court’s re vocation of proba tion for an abuse of discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). On appeal, Defendant must show that there is no substantial evidence to support the trial court’s conclusion that a violation of probation occurred. Id .; State v. G regory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Defendant argues that

the State failed to present evidence of some of the a llegations in the
warran t. The revocation warrant filed on Fe bruary 1, 2002, a

lleged that Defendant was arr ested on June 5, 2001 in Sp artanbu rg, Sout h Carolina, for “open container” and possession of mar ijuana; that Defendant left the State of Tennessee without informing his probation officer; and that Defendant-4-

failed to pay

court co sts and pr

obation f ees. Defendant ’s proba

tion offic er testif

ied that it was a condition of Defendant’s probation that he not travel outside of Tenne ssee without her permission. Defendant

testified that he understood that it was a conditionof his probation that he get permission from Ms. Silano b efore l eaving the state and that h

e did not attemp t to conta

ct her be fore dr iving to South Carolina. We conclude that the record contains sufficient evidence to support the revocation of Defendant’s probation.

Defendant

also contends that the trial court lacked t he author ity t o revoke probatio n in case number 44214 because, Defendant argues, he ha d already completed his four-y ear sentence in that case at the time of revocation. We agr ee.
Tenn. Code Ann. § 40-35-310 gives trial cou rts the au thority to revoke s uspende d sentenc es. See State v. Watkins , 972 S.W.2d 703, 704 (Tenn. Cr im. App. 19 98). The

statute a llows tria l courts discretion “to commence the execution of the judgment as originally e ntered.” Tenn. Code Ann. § 40-35-311(e) (Supp. 2002). If a defendant

who is on probation for consecutive sentences violates probation before completion of the first term, the trial court ha s authority to

revoke all probation and order service of the original sentences. See Hunter , 1 S.W.3d 643 at 646. Theref ore, ea ch time the trial court revoked Defendant’s probation in this case and reinstated his sentence, Defendant began serving his original sentence ane w. Id . at 646.

The trial court no longer has authority to revoke probation and order service of the orig inal sentence after a defendant successfully completes a probationary sentence. Tenn. Code Ann. § 40- 35-310 (1997); State v. Hunter , 1 S. W.3d 643 ( Tenn. 1999). In determining the expiration of a sentence of probation, a defendant is not entitled to credit for time served on probation unless the def endant successfully c ompletes the entire term of probation. Hunter , 1 S.W. 3d at 648

. Furthermore, the expiration of adefendant’s term of probation is stay ed by the filing

of a violation
warran t, b ut the probationary te rm remains in effect until the trial court rules on the violat io n warran t. State v. Cl

ark , 970 S.W.2d 516, 518 (Tenn. Crim. App . 1998) . In State v. Le wis , 917 S.W.2d 251 (Tenn. Crim. App. 1995), this Court held:

A trial court may e

xercise its authority over a suspended s e ntence “ at any time within the maximum time which was directed and ordered by the court for such suspension.” Tenn. Cod

e Ann. § 40 -35-310. If a

petition to

revoke i s initia ted within the term of the se ntence, any

limitation o f the time

within whic

h to act is tolled.

Id . at 256 (citations omitted).

Defendant

pled g uilty and was originally sentenced in cases 44241, 51652, and 51824 on September

17, 1993. The sentence consisted of t hree four-y ear sentences, to be served
conse cu ti ve ly, and the ju dgment r eflectsthat Def

endant r eceive d 26 day s of pret

rial jail c redit. Therefore, had Def

endant se rved his sentenc e without incident, the first four-ye ar term of probation would have expired on August 22, 1997.-5-

The first revocatio n of probation warrant was filed on May 11, 1994. The warrant was amended on February

16, 1995. On February

21, 1995, Defendant was taken into custody . The trial court referred Defendant to the Intensive Supervision Program of the Department of Probation. On March28, 1995, t

he trial c ourt o rdered D efendant to complete a drug and a lcohol rehabilitation progra m. On September 7, 1995, the trial court dismissed the revocation warrant and ordered that Defendant remain on intensive probation.

The second revocation warrant was filed on March 13, 1996. The warrant was amende d on May 9, 1996, and again on January 7, 1997. On April 16, 1997, the trial court revoked Defendant’s prob ation, and Defendant’s original 1993 sentence was “put into full force and effect.” The trial court found Defendant to be an appropriate c andidate for the C ommunity Alternatives to Prison Program and orde red Def endant to serve e ightee n ye ars in CAPP, to expire April 16, 2015. The trial court also gave Defendant c redit for 136 day s served up to the date of that order.

Defendant

did not successfully complete his first four -year term of probation prior to the revocation order dated April 16, 1997. Defendant’s original sentence be gan anew on April 16, 1997. The 136 days cre dit for time served effectivel y ma de the expiration of the first four-y ear term of probation December 1, 2000.

Defendant’s sentence was again revoked on February 9, 1998, and his original sentence was “put into full force and effect.” Howeve r, the trial court found that Defendant had completed the Knox County Sheriff’s Depa rtment Drug Program and 178 day s in custody and re in stated Defendant’s CAPP sentence. Defendant was transferred from CAP P to regular probation on Dece mber 4, 1998. A third probation violation warrant was filed on July 8, 1999, a nd later dismissed.

D efendant did not successfully complete the first four-year term of probation prior to th e revocation on February

9, 1998. On that date, Defendant began serving his sentence anew. The 178 da ys credit for time served, granted by the revocation order dated Febr uary 9, 1998, ef

fectively made the expiration of Defendant’s first-four y ear term of probation August 15, 2001.

The fourth probation violation warrant, which is the subj ect of this appeal, was filed on February 1, 2002, and Defendant’s probation was revoked on Ma y 23, 2002. The trial court found that Defend ant viola

ted the c onditions o f probat ion and or

dered him to serve

the rema inder of his original sentenc e in conf

inement. The tria

l court credited

Defend ant with

a t ot al of 71 2 d ays served in custody up to the date of that orde r.
The record

indicate s that Def

endant su ccessf

ully complete d the firs t f

our -year term of probation prior to the filing of the February 1, 2002, revocation warrant. The warr ant was filed after the first four-ye ar term of probation expired, accounting for credit for time serve d. Accordingly , we revers e the trial court’s revocation of probation in case 44241 and affirm the trial court’s revocation of probation in cases 51652, 51824, 57097, and 57768. The case is remanded to the trial court for the entry of a

n amended judgment consistent with this opinion.-6- CONCLUSION The judgment of the trial court that probation in case 44241 is revoked, is reversed because that sentence had alrea dy been ser

ved at the time of the filing of the probation violation warrant and subsequent probation revocation which is the subject of this appeal. In all other aspects, the judgment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE