### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON August 8, 2000 Session
STATE OF TENNESSEE V. JAMES M . WILLIAMS
Appeal from the Criminal Court for Shelby County No. 96-07865 Arthur T. Bennett, Judge

No. W1999-01458-CCA-R3-CD - Filed January 9, 2001

This appeal arises from the s enten ce that the Shelby County Criminal Court imposed upon James M. Williams, after a previous appealto this court result ed in a modification of his original two-year incarcerative

sentence to a sentence ordered to be served on probation. The defendant contests the trial court’s authority

to resentence hi

m to serve 60 days in a correctional facility , with the balance of his two-year sentence to be served on probat

ion. The defenda

nt also challenges his new sentence
as the product of judicial vindictiveness, and he claims that he is entitled to full probation basedon the facts of the case. After a review of the record, we reve rse the split-confinement sentence, order that the defendant se

rve his sentence on full probation with conditions, and remand for defendant to begin immediate service of his sentence. Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Revers

ed and Vacated, Sentences Modified and cause Remanded

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and J OHN E VERETT W ILLI AMS , JJ., joined.

Robert M. Brannon and Thomas E. Hansom, Memphis, Tennessee, for the ap p ellant, James M. Williams.

Michael E. Moore, Solicitor General; Kim R. He

lper, Assistant Att

orney Gene

ral; Perry Hayes, AssistantDistrict Attorney General; and Tom Henderson; Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

James M. W ill iam s ap peal s an d ch all enge s th e Sh elb y Count y Criminal Court’s determination that he is not entitle d to full probation on his two-year sentence for leaving the scene-2-

of an accident

involving death, a

Class E felony. Previously, this court had modified the trial court’s sentence that denied the defendant any form of alternative sentencing . Upon remand, and despite instructions from this court that the defenda nt’s senten ce was to be served on probation, the trial court ordered the defendant’s incarceration in a correctional facility for 60 da ys of his t

wo-year sentence. The defendant raises three issues on this appeal regarding the

trial court’s imposition of a sentence of split confinement. They are:

1. Did

the trial court err b y granting the state’s motion requesting a hearing on probation after the Court of Criminal Appealshad remanded the case for the defendant to be placed on full probation?

2. Did

th e trial court err by sentencing the defendant to a vindictive sentence uponhis successful appealto the Court of Criminal Appeals?

3. Did

the trial court err in deny

ing the defenda

nt full probation?

After reviewing the record on appeal, the briefs of the parties, and the applicable law, we modify the defendant’s split-sentence and order that he serve his sentence on full probation.

I. Trial and Direct Appeal

This i s the second occasion that the court has been called upon to review the defendant’s sentence arising from his felony conviction for leaving the scene of an accident involving death. In 1996, the defendant, then a twenty-one-y ear veteran office

r with the Memphis Police Department, was charged with vehicular homicide, driving while under the influence of an intoxicant, reckless driving, and leaving the scene of an accident involving death. At the conclusion of a jury trial, the defendant was found not guilty of all charge s except for leaving the scene of an accident. We adopt the following statement of facts from the court’s earlier opinion on direct appeal, State v. James M. William s, No. 02C01-9710-CR-00388 (Tenn. Crim. App., Jackson, Jan. 5, 1999), perm. app. denied

(Tenn.1999):

On July 29, 1995, shortly before 4 :00 p.m., the Defendant drove an automobile which s truck and killed the victim, Bobby E. Russell, Jr., on a residential country road in S helby Co unt y, Tennessee. At the time he was struck and killed, the victim had been using a gas-operated weed-eater a long the edge of the front yard of his reside nce near

the roadway. The victim apparently was either standing in the roadway

or stepped into

the roadway

in the path

of the vehicle the Defendant was operating. There was no evidence that the Defendant's veh icl e le ft t he ro adw ay o r that the Defendant was speeding at

the time his vehicle struck the victim. The speed limit on-3- the road at the scene of the accident was forty-f ive miles pe r hour, andall the proof indicated that the Defendant wastraveling within the speedlimit. The surface of the roadway was dry, a

nd the Defendant apparentlydid not apply his brakes prior to the impact with the victim. Testimony indicat ed that there were patches of shade and
suns h ine alternating along that portion of the roadway on that afternoon. The Defendant testified that he never saw the victim prior to the impact.

At the time of the acc ident, the Defen

dant was a twenty-one-year

veteran of

the Memphis Police Department who had attainedthe rank of maj or. Al though off-duty, he was driving the
un markedpolice department vehicle assigned to him. The for ce o f t he impact of the victi

m's body wit

h the Defendant'

s car was q

uit e severe. The hood of the vehicle on the passenger side was substantially

damaged, a

nd the e ntire passenger side of the front windsh ieldw as shattered. Although the windshield remained substan tially

intact, some glass from the windshield shattered onto th e front seat of the vehic

le. The victim's b

o dy was thrown approximately

forty-nine

feet by the

impact.

Imme diate ly

after the impact, although the Defendant apparently

slowed his vehicle to a stop or near-stop, it is undisputed that he then drove further, eventually traveling abo ut a mile to his
own driveway. The Defendant testified that after the impact, he was covered by

glass, and he tho

ught he had possib

ly struck his headon the steering wheel. He said that he stopped and immediately picked up his police radio to attempt to get help because he knew then that he had hit a person and that emergency me dical help would be needed. He said that h

e also attempted to use a cellular phone but that he could notget a response by using either the radio or the phone

. He then assumed that he was in a "deadspot" insofar as using the phone or radio, so he proceeded up the road, continuously attempting to summon emergency assistan ce by radio and phone. He said that when he got to his

house, he was still u

nable to establish contact by way of radio or cell phone and that he was going to go into his house to u se the pho ne to summon help. He then heard a siren in the distance, assumed that perhaps he had in fact been s ucc essful in getting help on the way

, and immediately

drove back to the scene of the accident. The testimony pre s ented varied the length of time betwe en the impact and the arrival of the De

fendant back at

th e accident scene from five

to fifteen or twe

nty minutes. Accordin

g to records ma in tained by the Shelby County Sheriff's Department-4- dispatcher, the first call ca me at 3:58 p.m., and a call was received from the Defendant a

t 4:08 p.m. Several witne sses testified that the Defendant

was apparently attempting to use his radi o and/or his cellular phone after he returned to the accident scene.

DellRussell, the widow of the vi c tim, was working in the yard near her husband when she heard the impact. She imme

diately
ran to the house

and called 911 for emergency help. She testified that it was perhaps fifteen minutes before the Defendant's vehicle returned to the scene, although in a previous statement she hadestimated the time at five to ten mi

nutes.
Franklin Perry Cathey, who was the victim's fr ie nd, br other-in-law, and neighbor, was among the first to arrive on th e scene of the accid

ent. He was a fireman who had some emergency medical training, and heandanother person attempted to revive the victim. Mr. Cathey knew that the injuries were

very serio

us and said the victim never regaine d consci ousness. The Defendant arrived back at the scen e wh ile Mr. Cat hey w as t here . Mr . Ca the y said th e Defendant

was outside his car "punching on his telephone," and that he asked the Defen

dant tocall for anemergency medical helicopter. He said that the De

fendant told him tha

t he could not get

a signal.

Mr. Ca they's son, Russell Cathey, also arrived on the scene shortly after the accident. He knew the Defen d ant because he had played on a high school football team with the Defendant's son. He said the Defendant dr

ove up while he wa

s there and he sa

w him talking on his radio. He asked the Defendant to try to get them some help and the D efen dant responded, "I'm trying . I'm trying." He testified that he smelledalcohol on the Def endant. The witne

ss was about eighteen years

oldat the time of the accident. He said that he asked the Defendant if he had been drinking and the Defendant told him that he " 'had a co

uple of beers at e

leven o'clock. ' " The witness said, "I'll say

he was pretty much heavily intoxicated." The witness acknowledged

that he didnot tell anyone at the scene that he believed the Defendant was im

paired due to intoxic

ation. He said tha

t it was notuntil sometime later at a "family m

eeting" with his

family lawyer that he told them he had smelled alcoh ol and t hought that the Defendant's ability to operate a vehicle was impaired.

Doroth yBurk was near the accident scene at the time of the accident. She heard the impa ct and saw the De

fendant' s vehicl e leaving the scene "very fast." L ater, at the scene, she sai d that she-5- heard the Defendant

tell Russell Cathey that he "'had a drink earlier and another one, but I'm no t drunk.'"

Michael Barry Cole

, a fir ema n with the Shelby County Fire Department,

arrived at the scene in response to the emergency call for assistance. He and two co-workers joined the effort t o help the vi ctim

. He said the victim was "in very bad, bad shape, real bad shape." He could fin d no vital s ign s. He said the Defendant approached

him and asked if

the victim was goi

ng to make it, and he advisedthe Defendant t

hat he did not think he was. He said the Defendant

was very c

alm, but was smoking

cigarette s and chewing bubble gum. He said

he detec ted an odor of alcohol about the Defendant

but that he did not form an opinion concerning whether the Defendant

was under

the influence of

an intoxicant. He worked with the victim until the helicopter arrived and the victim was transported to the hospital. Larry Crawford, anot her fireman who arrived with Cole in response to the emergency call, did not talk with the Defendant

or observe him clo

sely but did se

e him at a distance. He stated that by the way the Defenda nt was walking, h e "could have been" under the

influence of an i

ntoxicant.

John Scott Harper, a patro lma n with the Shelby County Sheriff's Office, was the first law enforcement officer to arrive at the
scene. He was approached by the Defendant who introduced himsel

f
as Major Williams with the City Police Department. Patrolman Harper apparently did not know the Defendant prior

to this time. He said the Defendant told him that he was the one involve d in the accident

. He said the Defendant told him that he had attempted t o raise his dispatcher on the radio and to use his cellular phone, but he could not make contact. Therefore, he went home to call law enforcement

and medical personnel and t hen retu rned to the scene. Harper said he noticedthat the Defendant had bloodshot eyes and that while the Defendant was in his patrol car, he noticed a "sli

ght smell of intoxicant on him." He transported the Defendant downtown after he was charged.

On cro ss-exam ination, the officer testified that he did not believe the Defendant's driving ability was impaired. He stated that while he was taking the Defendant downtown , th e Defendant told him that he had been drink

ing late into the hours of the

night before. T

his officer signed the affidavit of complaint charging the Defendant with DUI, reckless driving, and leaving the scene of an accident, but he te stifi edthat he was ordered to place these charges against the-6- Defe ndan t. He was not asked a nd did not say

who ordered him to charge the De

fendant. Memphis Police Officer Do naldLeon Goldsby, Jr. testified that at the time of this accident he was assigned to the Met ro DUI Squad , which was a combined unit of the Memphis Police Department

and the Shelby County Sheriff's Offic e. He was dispatchedto the scene of the crime. At that time he had known the Defendant

for abou t tw ent y years, had worked with him in the Memphis Police Department, and considered the Defendant a friend. Because of his relationship

withthe Defendant, he objected to being askedto investigate the Defendant on a cha rge of D UI. He told his supervisors that he did not feel comfortable about testing the Def endant. He told them that he believed it was ina

ppropriate

fo r him to do the testing. Ne

vertheless, he w

as ordered to

do the test ing.

Officer Goldsby activated a video camera a n d filmed the Defendant

as he was questioned and interviewed and as he performed field sobriety te

sts. He te s tified that the Defendant's eyes were re d andwatery and that he did notice an odor of an intox icant. He recorded on the form he was filling ou t at the t ime that he believed any effect of alc

ohol on the Defendant was "very slight." On the form, he checked that the odor of alcohol was "faint," that the Defendant's attitude was "cooperative and polite," and that his speech
was normal. He testified that his eyes were normal on the nystagmus test. He said the D efendant declin ed to take a brea

th-alcohol test. The jury viewed the video tape of the questioning and

testing of the Defendant,

including a "one leg stand" and a "toe to heel walk." The witness testified that in his opinion the Defendant's ability to drive was not impaired.

Accident reconstruction experts testified that the speed of the Defendant's vehicle was approximately fort y t o forty-five miles per hour at the time of the accident. The speed l imit on t he road was forty-five miles per hour.

The Sta te p res ent ed p rio r sw orn tes tim ony that h ad been given at a General Sessio

ns Court proceedi

ng by a witn

ess who was in the
area doing construction work on the day of the accident. He testified that immediately after the impact, he observed t he De fendant's vehicle speeding away

from the scene at a high rate of speed and that he subsequently observed the Defendant at the scene and he believed the Defendant was "very impaired."-7- The Defendant presented several witnesses on h is be half. Justin Gates was about si xteen years

oldat the t ime of the accident andplayed

football with the Defendant's son. He said that on the day of the accident, the Defendant came by his house at

about one o'clock to bring some

materials about a fund-raisingproject for the f ootball team. He said that he and the Defendant tal ked and wat ched a football game on TV for about an hour. He said that the Defendant
was not drinking at

the time and did not give him any indication that he had been drinking or was impaired.

Lieutena ntSammy Jones testified that he had been with the S helby Cou nty S heri ff's Dep art men t fo r abo ut n ine tee n ye ars. H e arrived at the accident

scene shortly after the accident and talked with the Defendant. He did not know the Defendant at that time. He said he called for the DU

I investiga

tion simply

because someone

told him that the Defendant

had stated that he had had a beer and because the Defendant was a policeman.

An acc ident

reconstruction expert employed by the Tenne ssee Highway Patrol also testified for the De fendant. He went to the accident scene the day after the a ccident occurr ed. His purpose in investigating this matter was to critique and review the investigative information gathered by the S helby County Sher iff's Department. He expressed his opinion that the victim "had been weed eating the grass on the shoulder of the road and step ped b ack into the road into the path of the vehicle driven by the Defendant." He also opined tha t the Defendant's vehicle

was traveling between forty and forty -five miles per hour. The Defendant introduced records from the Shelby County Sheriff's Office that indicated that the first cal l conc erning the accident came in at 3:58 p.m.

and that the fir

st call from the Defendant was r

ecorded at 4:08 p .m.
T he Defendant testified in his defense. He joined the Memphis Police Department in 1974 as a patrolman. Dur in g the
course of the next twenty

years, he worked his way

up through th e ranks an d was promoted to major in 1994 at the time he took over
comm and of the auto theft division. He is married and has two children who are both adults. The accident occurred on a Sat urd ay. He said that he got

up at about 7:00 a.m

. on that day, which was his day off. After having coffee and reading the paper, he went out and startedworking around his house. He mowe d the yard, did so me weed eating, and spr

ayed his dog

s for ticks. After he finished cutting-8- the grass, he sat on

his deck, throwing

a ball for his

dogs, and drank two beer s. H e di d no t dr ink any m ore a lco hol ic b ever ages tha t da y.
About one o'clock, he got in his car and drove ov er to the Gates' residence to t

urn in som e money that

he had for the fo

otball team. He stayed t

here for about a

n hour talking wit

h Justin Gates and
wa tchi ng a football game. He arrived back home at about 2:30 and flea-dipped

his dogs. He then put some sacks of garbage in his patrol
car and took them to a du mpster. When he wa s returning home aroundfour o'clock, as he was driving through some intermittent shade and sunshine, his ve hicle struck the victim. He said he did not
see the victim until the body hit his windshield. The glass shattered andblew back in his face. He proceeded a little further, stopped and immediately

reached for his car radio. His first thought was to get on the radio to try to get medical assistance. When he got no response, he t hought he was in a "dead spot," so he proceeded along the road way, trying to g

et someone to

respond to his calls. He droveon to his house so that he co uld make a call there; and when he started to get out of th

e car, he heard a siren and went back to the scene of the accident. He said he was gone four to five minutes. When he got back to the accident sc

ene, he continue

d to try to ge

t a response

on his radio and cell phone.

The Defendant said h

e refused the br

eathalyzer

test because the ty pe of machine used by

the Memphis police

was known to malfunction. He stat ed he did not want to participate in the test for th at reason . He also confirmed that on the evening before the accident, endin

g at about midnig

ht, he had drank a

couple of beers

. On cross-examin

at ion, the Defenda

nt admitted that he t

old Officer Goldsby that he had had nothing to d rink that day, but he explained that he meant that he had not [had] any

thing immediately prior to the accident. He denied that his driving ability was impaired due to alcohol, denied any reckless driving

, and insisted that th

e only
reasonhe drove away from the scene of the accident was to try

to find a place where his car radio or cellular phone would function.

Id. , slip op. at 2-11.

The jury received this evidence, deliberated, and returned a not-guilty verdict on all charges except the Class E fe lony of leav

ing the scene of

an accident res

u lting in i njury or death. See Tenn. Code Ann. § 55-10-101(b)(2) (1993).-9- The trial court subseq

uently conducted

a sentencing hearing and received additional proof. The state offered victim-impact testimony from the victim’s widow, his sister, his daughter, andhis brother-in-law. The defendant presented character evidence, a nd he testifi ed at senten cing. We adopt the following statement of facts from the court’s earlier opinion on direct appeal reg arding this sent encing heari ng:

The Defendant presented character eviden ce on his behal f. He
was described as a "genuine, sincer e, caring person." The witnesses described the Defendant's remorse

over the accident. The Defendant
was described as a g

ood police office

r, a good family

ma n , conscientious, ho

nest, caring, a

nd generous.

The Defend ant testified that this e vent had "devas

tated" his life. He related that he had lost his job and his career, that he was earning much less than he had be fore, and that his

family was on the verge of losing its home.

He expressed his r

emorse and said that he would give anything if he could change wha t had happened. He said, "I'd give anyt hing if he was a l

ive [sic] today . I think about i tsleeping andeating and getting up and I'm sorry. I'm sorry, but I can't bring him back."

The presentence repo rt

reflected t hat at the t ime of sent encing, the Defendant was forty-fo ur years of age and married with two children. He bega n employment with the Memphis Police Department

immediately

after gradua

ting from colleg

e in1974. His employment

with the Memphis Police Departmen t was terminated several weeks after the automobile acciden t. A t the time of sentencing he was employed with Mid-South Graphics in Memphis with a salary of nine dollars an hour.

Id. , slip op. at 16-17.

The trial court summarily rejected the defendant ’s request for probation or other alternative sentencing with out making an af

firmative showing

that the relevan

t sentencin

g prin ciples hadbeen considere

d; it se nten ced the defendant to two years incarcera tion as a Range I standard offender. On direct app eal, this court did not affo rd the trial judg

e’s sentencing

determinations a presumption of correctness.

The De fend ant here in w as co nvi cte d of a Cl ass E fel ony a n d sentenced as a standard off

ender, and thus w

as e ntit led to the presumption th at he is a favorable candidate for alternative sentencing. Tenn. Code Ann. § 40-35-102(6). Because the record does not affirmativel

y show that the trial court co nsidered these-10- sent encin g principles, we review the sentence de novo without a presumption of correctness. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

Id. , slip op. at 18-19.

Pursuant to the court’s de novo review, the def endant’s se

ntence wa s modified “to reflect that it shall be served on probation, with the terms and conditions of probationto be set by the trial judge.” Id. , slip op. at 25.

II. Remand and Re-

sentencing

This court’s opinion and judgment were filed on January 5, 1999. The supreme court deniedthe defendant’s application for per mission to appeal on June 21, 1999, and our court’s mandate was filed in the trial court on July 12, 1999. Two weeks later the state filed a motion in the trial court requesting an evidentiary hearing to litigate whether probation should be approved and, if so, what conditions should be imposed.

Over the defendant’s objection, the trial court scheduled a hearing on probation. At that hearing, the sta

te presented evi

dence that the de

fendant was invol

ved in a single vehicle accident in Shelby County on March 31, 1999, at a time when his Rule 11 app lication for permission to appeal was pend

ing before the

supreme court.
Martine Madlinger, an eyewitness to the accident, testified that she was driving on Old Brunswick

Road, a difficult, two-lane road, when a truck passed her on the left. Ms. Madlinger
was slowing down at the time because she was approaching a sharp curve in the road with a posted speedlimit of fifteen miles per hour. As the truck entered the curve, it swerved and skidded, left the road, and rolled over into a ditch. Ms. Madlinger stopped her vehicle and flagged down a passing motorist.

The passing motorist, Richard O’Donne

ll, came upon the wrecked truck, which had
come to rest upside down in the ditch. He crawled into the ditch and tried to open the truck door. Mr. O’Donnell

could hear a person inside mumbling and moaning; he kicked in the window of the truck and could smell

gasoline, and he could tell that the person inside was bleeding. Mr. O’Donnell helpedthe defendant

to get out of the truck through the window. According to Mr. O’Donnell, once the defendant was out of the truck he stood up and then fell back again st the creek bank. The defendant responded with “mumbling-type stuff” when Mr. O ’Donnell tried to q uestion him. Mr. O’Donnell

climbed out of the ditch, left the defendant sitting on the bank, and departed after deputy sheriffs began arriving on the scene.

Mr. O’Do nnell was questioned about the defendant’s sobriety. Previously , in a statement to law enforcement, he described smelling alcohol in the cab of the truck. He had denied at that time smelling alcohol on the defendant’s breath, and he voiced his opinion that the defendant-11-

could have been staggering either because he wa s under the inf

luence or because he was injured. In contrast, at the hearing, Mr. O’Donnell testified that the defendant smelled like a drunk and that the defendant’s

breath, clothes a

nd truck cab smell

ed of alcohol.

The state’s final witnesses were James Reginelli,

an emergency medical technician withthe Shelby County Fire Department, and L aura Fish, a paramedic with Rural Metro Ambulance. They examined the defe

ndant, and they noted that the defendant had been injured, in particular that he was bleeding fr

om his mouth . Mr. Regine lli observed the defendant while he was still in the ditch, and it appeared to Mr. Reginelli that the defendant fell and struck his head.

Both Mr. Reginelli and Ms. Fish smelled an alcohol odor on the defendant. Mr. Reginelli discovered

an empty pint

bottle of lime gin

inside the truck on

the passenger

’s side. Ms. Fish asked the defendant if he had been drinking, and she

testified that he r

esponded, y

es, and asked her to take it easy on him because he was a former Memphis police of ficer.

The defendant

relied upon the evidence from his previous sentencing hearing, and he introduced a stipulation entered into with the state. The stipulation recited that the defendant was involved in an automobile collision on March 31, 1999, that he was the driver and only occupant of the vehicle, that whe

n he reached the

curve in the road

, he lost control of

the vehic l e, and that the vehicle then left the roadway and overturned into a ditch. I t was further stipulated that the defendant had not been char

ged with or indic

ted with any

offense in conne

ction with the acc

ident.

III. Terms of the R

emand
Code section 40-35-40 1 provides the app ellate court with

the following opt

io n s in reviewing and d

eciding senten

cing issues on ap

peal:
(c) I f a s ent ence is a ppe ale d, t he ap pel lat e cou rt m ay: (1) Dismiss the app

eal; (2) Affirm, reduce, vacate or set aside the sentence imposed; (3) Remand the case or

direct the entry of an appropriate sentence or order; or (4) Direct any

further procee

dings appropria

te or required under the circumstances.

Tenn. Code Ann. § 40-35-401(c) (1997). Consistent with this authorization, the court can, for instance, order a reduction in a sentence that would operate independently to achieve the intended result. Alternatively, the court can remand the case and direct that the trial court issue an amended
or supplemental sentencing judgment. See St ate v. Sha nnon Lee Beckner , No. 923, slip op. at 3 (Tenn. C rim. App., Kn oxville, Apr. 2, 1991) (“[T]his Court may directly impose a sentence of probation, effective immediately, or it may dire ct the trial court to impo se such a sentence, which would be effective pursuant to the trial court’s order.”). Consequently, our beginning refe rence for this appeal is this court’s earlier judgment and mandate.-12- This court’s ear

lier judgment de

clares in pertine

nt part,
This case is remanded to the trial court for entry of an

order reflecting that the sentence be serve d on pr obation, with the terms and conditions of proba

tion to be set by

the trial court.

The court’s mand

ate, which was fi

led with the trial c

ourt on July 12, 1 999, directs the trial court in the following fashion:

Whereas, in our Court of Crim i nal Appeals, at Jackson, it was adjudged and ordered in

the case of James M. Williams . . . appealed to our said Court from

said Criminal Court that th

e same be remanded thereto for further proceedings and final determination.

These are, therefor

e, to require you, the Court as aforesaid, that you procee d with the execution of this Judgment of our said Court of Criminal Appeals, by such further proceedings in y our Court as shall effectuate the objects of this order to remand, and attain the ends of justice.

The clear language of the court’s jud gment and manda

te commands the trial

court to enter an order that the

defendant’s “sentence b e served on probation” and to set the terms and conditions of probation. The remand to the trial court was limited, not general. The state insists that the trial court compli

ed with the limited r

emand by impo

sing a sentence

of split confineme

nt. We cannot agree.
The first reason why we cannot accept the state’s arg ument is based on the alternative sentencing options enumerated in Code s e ction 40-35-104. Full probation is listed as one option. See Tenn. Code Ann. § 40-35-104(c)(3) (1997) (“A sentence of confinement wh i ch is suspended upon a term of probatio

n supervisi on which m ay include community service or re stitution, or both.”). A separately

listed option is commo

nly known as “

split confinement.” See Tenn. Code Ann. § 40- 35-104(c)(5) (1997) (“A senten ce of con tinuous confinement to be served in a local jail or workhouse

in conjunction with aterm of probation.”). The court’s earlier judgment in this ca

se did notremand for

imposition o f “alternative” sentencing. Had it done so, the trial court would have been auth ori zed to consider split confinement. Instead, the court’s judgment directed that the defendant’s two-year sentence be served on probation, a spec ific type of alternative

sentencing. If the court had intende

d an alternative

sentence of split

co nfinement, it could

and would have so specified. See, e.g., State v. Louis Lavergne , No. 01C01-9803-CR- 00128, slip op. at 4 (

Tenn. Crim. App., Nashville, Jul. 8, 1999) (the man ner of service o

f this sentence is m

odified to reflect a period of six months confinemen

t in the local jail or

workhouse

with the remainder of

the four year sentence to be served on sup

ervised probatio

n); State v. Bingham , 910 S.W.2d 448, 457 (Tenn. Crim. App. 1995), overruled in part State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000).-13- The second reason why we reject this argument is that the trial cour tcorr ectly understoodthat this court’s judgment and mandate required full probation. In its written order denying full probation, the trial court wrote, “The Court of Appeals of Tennessee has directed that [the defendant] serve his entire two (2) year sentence on proba tion subjectto terms and conditions to be set by

this Court.” The trial court, in other words, did not believe that sentencing the defendant to split confinement was the equivalent of ordering the defendant to serve “his en tire ” two year sentence on probation.

Any lingering doubt about this court ’s intention that the de fendant receiv

e full probation is dispelled by the court’s earlier opinion.

The De fendant is a first offende r convicted of a C

lass E felony. He

has no history

of criminal condu

ct. The record sug

gests no negative factors in the Defendant’s background and soc ial his tor y; to the con tra ry, the record reflects an impressive and solid record as
a productive member of s ociety. He clearly is not an offender for whom incarcera tion is a priority . His potential for rehabilitation appears to be excellent. We b elieve the fact

ors favoring pr

obati o n clearly outweigh any

factors suggesting incarceration.

James M. Williams , slip op. at 25 (emphasis added).

Acco rdi ngly, we conclude that by imposing a split-confinement sentence the trial court didnot thereby

fulfill the court’ s previous judgme nt and mandate

that the defenda

nt serve his two-year sentence on full p

robation with appr

opriate terms and

conditions. IV. Options Consistent with Mandate

The state’s next arg

ument, which it adv

ances more forc

efully, is that when this court remanded the defendant’s

case, itsstatus was that of “pending disposition” before the trial court such that additional matters were properly considered. The trial court regar ded the situation as “sort of novel” and concluded tha t it had the au thority to make a sentencing decision, different than that ordered by

our court, based on changed circumstances. Otherwise, the argument goe

s, defendants would be immunized fo

r any miscon

duct occurring

during an appea

l.

This contention has a certain superficial allure because, as the state correctly notes, our court’s jurisdiction is appellate. See generally Tenn. Code Ann. § 16-5-108 (1994). We are not authorized to conduct hearings and determine disputed issues of fact. See Duncan v. Duncan , 672 S.W.2d 765, 676 (Tenn. 1984). Nonetheless, it does not logically or necessarily follow that during the appellate process a window of opp ort uni ty for criminal mayhem, with no accountability or adverse consequences, is thereby opened.-14- First, a defendant who remains on bond during the pendency of a n appeal cannot indulge in crimin

al behavior with

impunity. The

state can file to increase or revoke a defendant’s appeal bond. Tennessee Rule of Appellate Procedure 8 provides an effective and efficient mechanism

for revising co

nditions of relea

se and for obtaining appellate review of the conditions. We find no indication in the record before us that the state pursued this option.

S econd, nothing prevents the state from in itiating separate criminal charges. Provided probable cause exists to believe that a defendant has committed a criminal offense, issuan ce of a warrant or grand jury indictment can be pursued and obtained. Evidently, this course of action was unavailable

in this case. The st

ateadvised the trial court that it could not prove that the defendant
was under th e influence of an intoxicant that impaired his ability to drive at the time of the mos t recent accide

nt. Third, Tennessee Rul es of Appellate Proc edure 14 allows th

e appellate cour

t to consider post-judgment fa

cts in certa in, l imit ed cir cumst ances . In Duncan v. Duncan , 672 S.W.2d 765 (Tenn. 1984), the

supreme court dis

cussed appropri

ateguidelines for the scope of Rule 14. One instance suitable fo r acce ptance of post-judgment facts occurs when “‘the court is in need of extraneous evidence respecting some situation or fact to enable it to determine, not the propriety of the conduct of the district court, but the nature of the j ud gment to be directed.’” Crawford v. Crawford, 163 Kan. 126, 181 P.2d 526, 531-32 (1947) (quoting Hess v. Conway , 93 Kan. 246, 144 P. 205 (1914)), quoted with approval in Duncan , 672 S.W.2d at 767-78.

Under facts similar to what happened in this case, the state, for example, could have filed a Rule 14 motion to consider th e defendant’s p

ost-conviction ac

cident as releva

nt to the nature of the judgment th

at should be enter

ed on appeal. Tha

t is, rather than a

judgment remand

ing with specific instructions to

place the defendant on probation, a judgment remanding the case for further proceedings to determine the type of alternative sentencing could have been

sought. Furthermore, pursuant to Rule 1 4, a limited remand could have been ordered for the purpose of having the trial court hear new evid ence regardin g the acciden t; the tria l court the reby is assist ing t he court’s appellate jurisdiction. See Duncan , 672 S.W.2d at 769.

We are mindful that a

t the time of the def

endant’s accide

nt on March 31, 1999 , a Rule 11 application for permission to appeal was under consideration by the supreme court. The procedural postu

re of the case

at that time, however, does not affect the options discussed above. Hadthe supreme

court accepted

the defendant’s

appeal, the state

could have requested consideration of post-judgment

facts by the

supreme court. See Tenn. R. App. P. 14(a) (“The Supreme Court . .

. may consider facts concerning the act ion tha t oc curr ed af ter jud gmen t.” ). A lte rnat ive ly, once the supreme court denied per

mission to appeal, th

e state could have

filed with this

court a request

that the mandate be stayed or that the mandate be recalled. See Tenn. R. App. P. 42(d) (power to stay
a mandate includes power to

recall a mandat

e). As grounds,

the state could ci

te to the defendant’s accident as appropriate

for Rule 14 consideration of post-judgment facts. The state made no such overture in this case.-15- In many circumstances, the most straightforward course of a ction would be for the trial court to gran t full prob ation with terms and co nditions , after whic h revocatio n proceedin gs could be instituted. Cf. State v. Shannon Lee Beckner , No. 923, slip op. at 4-7 (Tenn. Crim. App., Knoxville, April 2, 1991) (affirming probation revocation after remand but allowing that denial of probation after remand could be based on new events).

This proc

edure doe s not oper ate to immu

nize defendants

for criminalmisconduct

occurring bef

ore probation is or

dered because

revocation may be predicated upon criminal offenses committed bef ore a probationary sentence is imposed. Revocation on this basis depends on knowledge or ignorance of the offenses at the time the suspendedsentence is

imposed. If the offen

ses were known be

fore probation w

as granted, the

re is
a presumption that

the prior acts were part of the earlier sentencing equation, and they should not be used for revocation. On the other hand, offenses not disclosed at the time probation is granted may be conside red for revocation purposes. See, e.g., State v . Stubblefield

, 953 S.W.2d 223, 225-26 (Tenn. Crim. App. 1997). No due process notice c oncerns arise

because “the defendant is deemed to have notice that his or her conduct must conform to the requirements of the law from the time of the law’s enactment.” Id. at 225; see State v. Keel , 882 S.W.2d 410, 419 (Tenn. Crim. App. 1994) (compliance with state law an a utomatic condition o

f probation); State v. Stone , 880 S.W.2d 746 (Tenn. Crim. App. 1994).

The defendant in

this case was not arrested or charged with any offense in connection withthe March 1999 accident. Consequen tly , reliance on the accident as the basis to revoke probat ion would have given rise to due process notice concerns. Because the trial court did not “revoke” the defendant’s probation, we ar e not he re confronted with or required to settle a constituti onal due process dispute. We recognize, however, that at the time of the accident, the def end ant was awaiting a decision by the supreme court whether it would g rant his Rule 11 application for permission to appeal. The defendant knew that this court ha d modifi ed his incarcerative

sentence to a probationary sentence. He, theref ore, was aware

and had notice that

even if his application for permission to a ppeal was denied, he would b e placed on proba

tion with conditions. Furthermore, the defendant should have been on notice tha t his p rivilege to operate a motor vehicle had been subject to revocation since entry

of the trial court’s judgment of conviction, notwithstanding the appeal of his conviction and sentence. See State v. Sneed , 8 S.W.3d 299, 301-02 (Tenn. Crim. App. 1999) (c onviction that is

on appeal still constitutes final conviction for revocation purpos es); s ee alsoTenn. Code Ann. §55-50-501(a)(4) (1988) (department shall revoke license upon receivi ng record of conviction for leaving the scene of an accident involving death, whe n suc h conviction is final); Tenn. Code Ann. § 55-10-101(b)(2), (c) (1998) (Class E felony for leaving the
scene of an accident involving death; the “commissioner shall revoke the license or permit to drive . . . of the person convicted of a violation of this section”).

All of the alternatives that we have discussed so far p resuppose either

adherence to the court’s judgment and mandate or modificat io n/recall of the c

ourt’s mandate. N

one of these alternatives were explored in this case, and we

express no opinion on

the outcome of this

case had any or all of them been a

ttempted. We also ar

e not suggestin

g that these

alternatives are exclusive; rather, they belie the argument that defendants a

re immunized for the

ir misconduct occurring during an appeal.-16- It remains for us now to address whether the trial court was authorized to conduct an evidentiary hearing on remand, as was done in this case, and whether the trial court was permitted to disregard or deviate from this court’s judgment that the defendant serve his sentence o n fu ll probation. The “l

aw of the case”

doctrine supplies

us with the answer

s.
V. “Law of the Case

”

The appellate court

directs actions a

nd dictates resul

ts through its order

s, judgments, andmandates. A manda

te is controlling a

s regards matte

rs “within its

compass, but on the remand
a lower court is free as regards other issues.” Sprague v. Ticonic Nat’l Bank , 307 U.S. 161, 59 S. Ct. 777 (1939). See also State v. Irick , 906 S.W.2d 440, 443 (T enn. 1995); B arger v. Brock , 535 S.W.2d 337, 341 (Tenn. 197 6)(inferior co urts obliged to

abide decrees

of higher cour

ts; otherwise court system would be “chaotic in its operation and unstable and inconsistent in its decisions”).

Fealty to a mandate, howe

ver, is no t absolute. Although rare, a departure may be justified in exceptional circumstances because adherence t o the c ommand of a superior court on remandis a specific application of the “law of the c ase doctrine.” See 18 Charles Wright et al. , Federal Practice and

Procedure § 4478, at 788 (1981) (four distinctive sets of problems are caught up in la w of the case ter

minology; on

e set arises from

the “obligation o

f every co urt to honor th e rulings of a court that stands higher in a hierarchical judicial structure”). The “law of the case” doctrine is “not a constitutional mandate nor a limitation on the power of a court.” Memphis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd. , 975 S.W.2d 303, 306 (Tenn. 1998)

. It is a “discretionary

ruleof judicial practice which is based on the common sense recognition that issues previously

lit igat ed an d de cid ed b y a court of competent jurisdiction ordinarily need not be revisited.” Id. The doctrine applies to both legal and factual conclusions. See Carson v. Nashville Bank & Trust Co. , 204 Tenn. 396, 401, 321 S.W.2d 798, 801 (1959).

Three exceptional circumstances may justify a depa rture from the “law of

the case”; they are: (1) a significa

nt change in con

trolling legal

authority; (

2) substantially

different evidence offered after remand; and (3) a clearly erroneous prior

decision that, if n

ot corrected, w

ill result in a manifest injustice. Memphis Publ’g Co. , 975 S.W.2d at 306.

A. Hearing on Rem

and

As previously discussed, this court’smandate was limited, not general. The m

andate didnot contemplate f

urther proceed

ings, and it did not direct the trial court to undertake additional fact finding or conduct evidentiary hearings. Pursu

ant to the mandate, the task to be completed on remandwas ministerial; it r equired enterin

g an amended jud

gment form that s

en tenced the defendant to full probation and set forth terms and conditions of probation.

Because our mandate was limited, the trial court was not at liberty simply to reopen the defendant’s sen

tencing. Rather

, the trial court s

hould have m ade a threshold determination whether sufficient cause existed to conduct additional hearings. Unless one of the exceptions to the-17-

“law of the case” doctrine was implicated, no further proce edings were warrante

d. Moreover, to justify a hearing on one of the exceptions, the moving party must allege grounds sufficiently definite, detailed, and non-conjectural, which if true, would justify a departure f rom the “law of the case.”

Under the particular f

acts of this case

, we do not fault

the trial court for conducting
an additional hearing after remand. The state led t he trial court to reasonably believe that the defendant had committe

d the offense of dr

iving while intoxica

ted that caused a

n automobile accident

. That claim, if true, could qualify as “substantially diffe rent evidence.” At the hearing , however, the state then

could not demonstrate that the accident was caused, even partially, by any alcohol that the defendant may have consumed at some earlier time. At best, the state’s claim that it advanced to obtain a heari ng was a hollow ov erstatement, but t

he trial court did n

ot err in its response to the state’s representation.

B. Substantially Different Evidence

The trial court in this c

ase never refe

rred to “law of the case” doctrine. Its intuitive belief that it could

considerchanged circumstances was, however, accurate. Similar unspoken recognitionof exceptions to the “law of the case” doctrine can be found i n cases such as State v. JeremyA. Winsett

, No. 02C01-9709-CR-00343 (Tenn. C rim. Ap p., Jackson, Sept. 17, 1998), and State v. Shannon Lee Beckner , No. 923 (Tenn. Crim. App., Knoxville, April 2, 1991).

In Winsett , the defendant’s ca

se was reversed and remanded with instructions to grant pre-trial diversion. During the pendency of the appeal, however, the defendant had been arrested and convicted for theft of

property. The conviction made him ineligible for pre-trial diversion, and on remandthe trial court refused to place the defendant on pretrial diversion. On appeal, our court agreed that the defendant was ineligible and affir med the judgment of the trial court. Winsett is a classic example of the “substantially different evidence” exception to the “law of the case” doctrine.

In Beckner

the defendant a

lso acquired a ne

w conviction while

on bond pending hi

s sentencing appeal from other convi ctions ari sing from a h ome burgl ary. His sentencing appeal resultedin a remand for

the trial court to develop an appropriate Community Corrections Act plan
or place the defendant on probation with conditions. After the remand, the defendant also was char ged w ith , bu t fo und not guil ty of , rec eiv ing s tol en p rop ert y.

On remand, the trial court in B eckner

placed the defendant on intense supervised probation andentered its order to be effective back to the original sentencing date. The trial court then instructed the pr ob ation officer to prepare a probation revocation warrant based on the defendant’s conduct since the original sentencing date. Following a hearing, the trial court revoked the defendant’s probation, and the defendant again appealed.

The court affirmed the revocation of defendant Beckner’s probation; in its opinion th e court also took the opportunity to discuss the options available to the trial court upon reman d from the firs t appe al. In particular, the court explained tha

t the trial court wa

s not locked into-18-

proceeding by way of probation revoca tion because the defendant’s criminal law violations “would justify either a denial of probation in t he first instance or a revocation of a previously imposed probation.” Beckner , slip op. at 5.

Although the trial court wa s obligated to com

ply with th

i s Court’s prior opinion, the defe

ndant cannot be de

eme d to h ave been on probation until the trial court had so ordered. Also, until a trial court orders probation, any new event which would legitimately bear on the issue may be b rought to the tria l court’s attentio

n for its consideratio

n. Otherwise, defendants would be immunized for any misconduct

occurring during

an appeal. Thus, the trial court’s belief, in this case, that it must place the defendant on probation because of this Court’s opinion would be correct only if nothing of substance has sinc e occurred. When new evidence is brought to the trial cou rt’ s attention, it should conduc t t he hearings und er the statutes an

d case law which determine sentencing alternatives, not revocation.

Id. , slip op. at 4. This

explanation cogently expresses the essence of the “law of the case” doctrine.

In the present case, there was no significant chan ge in controlling leg

al authority during the time that the defendant’s appeal was pending. In addition, this court’s prior decision was notclearly erroneous such that manifest injustice is the result. The only

possible exception to the “law of the case

doctrine” into wh

ich the defenda

nt’s case could f

all is the exception f

or substantially different evidence.

The “substantially different evidence” exception, as the phras e indicates, is fact specific. The evidence at issue should, at a minimum, berelevant and of consequence to t

he terms of the remand. Cumulative evidence, without more, is insufficient to depart from the law of the case. The evidence mu st be not on ly “different” b ut “substa ntially diffe rent” to ups et the order s and rulin gs of a higher court. In our opinion, the exception does not apply in this case

.

This court modifie d the defendant’s original incarcerative sentence based on a de
novo review of the re

cord without a presumption of correctness, because the trial court did not affirmatively

demonstrate that it had considered the relevant sentencing principles. This court, as part of its de novo review, articulated and took into account the following factors: whether probation will subserve the ends of justice and the best interest of both the public and the defend ant; the potential or lack of

potential for the rehabilitationor treatment of the defendant; whether the nature of the offense

outweighs all factors favoring proba tion; whether con

finement is nece

ssary to avo

id depreciating the seriousness of the offense; and whether the denial of

probation will pre

vent crime andpromote respect for the law by providing aneffective ge neral deterre

nt to those likely

to violate the law. See James M. Williams , slip op. at 23-24.-19- Applying these fact ors to t he facts, this court explained why probation was appropriate. First, “[t]he Defendant is a first offender convicted of a Class E felony.” Id. , slip op. at 25. The March 1999 accident does not affect that fact. The defendant was not arrested or charged with any cr

iminal offense in c

onnection with the

accident.
Second, the defendant “has no history of cri minal conduc t.” Id. The March 1999 accident does not affect that fact.

Third, the “record suggests no negative factors in t he Defendant’s background and social history.” Id. The defendant’s background and social history were detailed in the presentence investigation report prepared for the trial court in con nec tion with the defendant’s original sentencing. Nothing in that history persuaded this court that the defendant should not receive probation, an d the Marc h 1999 accident does not rise to the level of “substantially different evidence.”
Fourth, “the record reflects an impressive and solid record as a productive member of society.” Id. The March 1999 accident does not detract from the defendant’s record. It has no bearing on his employment reliability or work e thic.
Fifth, the defendant “clearly is not an offender for whom incarceration is a priority.” Id. The March 1999 accident does not change that evaluation. Code section 40-35-102(5) provides that incarceration

is a priority for “convicted felons committing the most severe offenses, possessing criminal histories evincing a clear disregard for the laws and morals of society, and evincing failure of past e fforts at r

ehabilitation.” T

enn. Code Ann. § 40- 35-102(5) (1997) . The defendant i s “clearly” not such an offender.

Last, the defendant’s “potential for rehabilitation appears to be excellent.” James M. Williams , slip op. at 25. Various considerations enter into potential for rehabil itation, such as cred ibi lit y, remorse, candor, and work history. See, e.g., State v. Dowdy , 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); State v. Anderson , 857 S.W.2d 571, 574 (T enn. Crim. App. 1992). The March1999 accident does not implicate these kinds of

concerns. Moreover, the defendant already has voluntarily

sought out and obta

ined inpatient tre

atm ent for major depre

ssion, post-trauma

tic stress disorder, alcoho

l dependence an

d hyperten

sion. Rigorous c

onditions of probation can effectively

deal with any

alcohol depende

ncy conce rns.
For the foregoing reasons, we are of the opinion that the March 1999 accident was notsuch substantially different evidence as would have authorized the trial court to depar t from the law o f the case as set

tled in this court’s

earlier opinion.

Consequently

, we reverse the

sp lit

confinement sentence that the trial court imposed on remand.

Before leaving this “law of the ca se” issue, a final observation is in order. Our review of the evidence from the “law of the case” perspective is fundamentally differen t th an appellate review when there is a challenge to the length, range, or manner of service of a sentence.-20-

In the latter situation, the court conducts a de novo review of the record with a presumption that the determinations made by the t rial court are c

orrect, provide

d that there is an “

affirmative show

ing in the record

that the tri al court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991); see Tenn. Code Ann. § 40-35- 401(d) (1997). If appellate review reflects that the trial court prope

rly considered all relevant factors andthat its findings of

fact are adequ

ately suppor

ted by th e record, this court must affirm the sentence, even if

our independent judgment on the question might differ. See State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

Pursuant to this standard of review, if the trial court had b een able to consider the Marc h 1999 ac cident as part of its original sentencing determination and if the trial court had properly considered the sentencing principles and all relevant facts and circumstances, its decision to impose split-confi

nement likely

would not have bee

n disturbed even if

this court disagreed. By contrast, the trial court’s decision to order a hearing and t

o deviate from our

judgment is subjec

t to more sweeping review. Broader revie w is required bec

ause the court is d

ealing, in the first instance, withthe legal sufficiency of claims made by

the moving party

who is seeking a h

earing to estab

lish an exception to the “law of the case” doctrine. Broader review is also required to determine if the evidence is legally sufficient to make out an exception to the “law of the case” doctrine. In this case, the evidence is no

t legally s ufficient.

The defendant has raised two other sentenc ing issues on appeal . Our ruling pre termits consideration of

these issues, and w

e do not reach the

ir merits.

VI

. Conclusion

For the foregoing reasons, we re verse the defendant’s sentence. Pursuant to Code section 40-35-401(c), the judgment of conviction is amended and modified as follows: The defendant is hereby sentenced to a te

rm of two yea

rs, all of which is suspended, and the defendant is placed on superv

ised probation for

the term of his sent

ence. The defe

ndant shall be su

bject to usual and custom ary rules for su pervised pr obationers , includin g s atisfyin g any reporting and administrative requirements. In addition, the defendant is ordered to perform 80 hours of community

service, to ref

rain from possess

ing a firearm o

r other danger

ous w eapon, to no tify promptly h is probation officer of any arrest or citation and of any change in his address or employment,

to abstain from the consumption of alcoholic beverages and from the consumption of any nonpre

scription narcot

ic substances, and to submit to random drug/alcoholtesting. See Tenn. Code Ann. § 40-35-303(d) (1997).

__________________________________ JAMES CURWOOD WITT, JR., JUDGE