### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Marc h 4, 200 8

STATE OF TENNESS EE v . ALMEKO CHIFFON W OODS Appeal f rom the Circ uit Court for Hardem an Coun ty Nos. 6910, 05-01-0029 J. We ber Mc Craw, Jud ge

No. W2007-02025-C CA-R 3-CD - F iled Augu st 28, 2008

On F e br ua ry 4, 20 05 , th e de fe nd ant, Al me ko Chi ff on Woo ds , p le d guil ty

to o ne c ount o f f

or g e ry le ss tha n $2 00 and on e c ount of fr a ud ule nt us e of

a c re dit c ard be tw e e n $ 50 0 a

nd $1 00 0, bo th C la ss E felonies. The trial court sentenced the defe ndant t o two y ear s probation for eac h offe nse, with the sentenc es to run conc urre ntly . On J anuar y 22, 2007, a probation violation report was prep ared, alleg ing that the defe ndant fa iled to meet with her probation office r and f ailed to pay

restitution and court c osts. However , this report was not filed unt il Fe bruar y 20, 2007. On J anuar

y 30, 2007, the trial court issued what the defe ndant considere d a capia s and the state consider ed an a rre st warr ant in connec tion with the alleg ed probation violation. Following a J une 28, 2007 hear ing, the trial court found the de fenda

nt in violation of her probation and extended her pr obation another y ear . That same da y , an additional probation violation was filed with the trial court, alleg ing that the def endant violated her

probation by

being arr ested for simple possession of a controlled substance and fa iling to report this arr est to her probation office r. I n Aug ust 2007, the trial court r evoked the defe ndant’s probation and or dere d her to ser ve a two- y ear

sentenc e in the De partment of Corr ection. The defe ndant appe als, arguing that be cause the probation violation report was not filed until Fe bruar y 20, 2007, her probation expired on Fe bruar y 4, 2007. She further

argues that bec ause the document issued by the trial court in January 2007 was not a n arr est war

rant, the limitations period for f iling the probation violation was not tolled, and therefor e the trial court’s ex tension and re vocation of he r probation we re nullities beca use her probation expired on Fe bruar y 4, 200 7

. Af

t er reviewing the

rec ord, we conclude that the expiration of the defe ndant’s probation was proper ly tolled and that the trial court a cted pr o p er ly in ext ending and subseque ntly revokingthe def

endant’ s probation. As

su c h, we a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uitCo ur t A ffirm e d.

D. K EL L Y T HOMAS , J R ., J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and N OR MA M C G EE O G LE , J J ., joined.

Wil liam G. Hatton, B olivar, Tenne ssee, f or the a ppellant, Almeko Chiffon Woods-2-

Robert E. Cooper, Jr., Attorney Ge n er al an d Reporter ; Rachel West Har mon, Assistant Attorney Gene ral; D. Micha el Dunava nt, District Attorney

Gene ral; Joe L . VanDy ke, Ass i s t an t District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION
The initial probation re port conne cted with thi s case , prepa red on J anuar

y 22, 2007 and filed on Fe bruar

y 20, 2007, alleg ed that the de fenda nt violated her pr obation by failing to report to her pr ob a tio n o ff

ic e r o ve r a six- mon th p e ri od , w ith the la st me e tin g be ingJune 15 , 2 00 6. Th e re po rt a lso alleg ed that the de fenda

nt o we d $992.28 in fines, re stitut ion, and cour t costs, noting that the de fe nd ant “ ha s n ot b ro ught in a de qu a te pr oo f o f S SI/D isa bil ity so pr ob a tio n f

e e s c an b e pr op e rl y
a sse sse d to the of

fe nd e r. ” Th e re po rt

sp e c ifical ly no ted that w he n th e de fe nd ant p le d guil ty in Fe bruar y 2005, a condition of he r probation was that she would pay restitution ($170.02 in the forg ery case and $501.78 in the cre dit c ard fra ud case , a total of $671.80) w ithin ninety day s of entry of the judg ments in the case s.

On J u n e 2 8 , 2 0 0 7 , th e tr ia l c o u rt c o n d u c te d a h e ar in g o nth e p r o b a ti o nv io lati o n

. A t t h at he ari ng , Pe ke e tia

Ha ll, the de fe nd ant’ s p ro batio n o ff ic e r, re state d th e a

bo ve -l ist e d fa c ts le a din g to he r fi lin g a

pr ob a tio n v iol a tio n r e po rt a g a ins t th e de fe nd ant. On c ro ss- e xami natio n, Ms. Ha ll s a id that the def

endant wa s to report to her at the Ha rdema n County J ail. Ms. Hall said that the def endant

c ou ld h a ve re po rt e d on an y Tu e sd ay or Thur sd ay of the de fe nd ant’ s c ho os ingwi thi n a g ive n mo nth and that the de fenda

nt could also selec t her own a ppointment tim e.

Three members o f

th e d e f e n d a nt’s family

testified on her

behalf : I nez Woods , the def

endant’ s g randmother ; Denita W oods, the defendant’s aunt, and Brenda Woods, t he def

endant’ s mother. The three women said they

took turns taking the defe ndant to the Har deman County J ail for he r appointments with her probation officer . The thre e wo m en testified that they often saw

the defe ndant g o into the jai l and then exit the jail a short time later, with the def endant c laiming that her pr obation office r wa s not present for the appointment. The w omen wer e all unable to rec all exact date s o n wh i ch they

took the defe ndant to the jail, and the wome n said that they sometimes

a c c omp anie d th e de fe nd ant int o the ja il, bu t ot he r t ime s th e y

did no t. T he wo me n w e re a lso un a ble to p ro du c e do c ume ntation re g ard ingthe de fe nd ant’ s a pp oin tme nts or

the de fe nd ant’ s sp e a kin g to any one at the ja il reg ardingher attempts t o m ee t with her proba tion officer . The de fenda nt’s g ra ndmot he r t e sti fi e d th a t sh e tol d th e de fe nd ant t o c a ll h e r p ro batio n o ff ic e r af te r e a c h o f t

he se missed meeting s, and she sa id that her g randda ug hter followe d her instruc tions.

The de fenda

nt testified that she wa s scheduled to mee t with her probation office r once per month at the Har deman County J ail. She said that she could mee t with t h e p ro b ation office r on Tuesday or Thursda

y , but the probation off

icer assig ned the actua l appointment time. The de fenda nt said that various family members took he r to the jail f or these appointments, and she insisted t h at she wa s never

late for a sche duled appointment. She testified that on sever al occa sions, she arr ived-3-

a t th e ja il f

or he r a pp oin tme nt a

nd fo un d th a t t he pro bat io n off ic e r w a s n ot p re se nt. Whe n th is happene d, she said that she spoke with the jailer, left the jail, and then c alled her probation off

icer to resche dule the appointment once she re tu rn ed h o m e. The de fenda nt said that she was unsur e wh e the r t he ja il d oc ume nte d h e r v isi t to the ja il w he n th e pr ob a tio n o ff ic e r w a s n ot p re se nt.

The de fenda

nt admitted that she had not paid all her court costs, fines, and r estitution. S he said that she wa s on disability
, and she was pa y ing be tween $50 a

nd $60 per month. The de fenda nt said that if the t rial court extended her probation, she would be will ing to take steps to ac cele rate her pay ment if requir ed. On c ross-examination, the defendant admitt ed that a condition of her probation was to pay full restitution within ninety day s of being placed on probation in Februa ry 2005, and she had not met this condition.

The state the n rec alled Ms. Hall, the de fend an t ’s probation off icer , who re iterate d that the defe ndant had not re ported for a sche du l ed v i s i t since June 15, 2006. Ms. Hall said that the defe ndant had only

called twic e af

ter missed appointments since that date.

At the conc lusion of the hear ing, the trial court f ound the def

endant i n v i o l at ion of her probation. In so doing, the court stated that the defe ndant’s “re cord of honesty is not real g reat.” The court a lso noted that the defe ndant provided no doc umentation to support her c laims that she had

arr ived for se vera l scheduled me eting s with her probation officer , only to find her pr obation office r absent. The trial court pa rticularly noted t hat while the de fenda nt claimed that she spoke with the jailer whe never

the probation officer

was not pre sent for a

schedule d appointment, the jailer ha d not been c alled to testify . The trial c ourt extended the def endant’ s probation for one y ear

. S ee Tenn. Code Ann. § 40-35- 308(c) (2006) ( providing that “at th e co n cl usion of a probation revocation hear ing, the court shall have the authority to ext end the de fenda

nt’s period of pr obation supervision fo r a n y p er i o d n o ti nex ce s s o f t wo y ea rs ”)

. T h e d ef en d an td i d

n o tap p ea l t h e t ri al co u rt ’s ru l i n g.

The da y of the he aring, t h e s t at e prepa red a nd filed with the trial cour t another pr obation violation report. Ac cordingto the repor t, t h e defenda

nt was ar rested f or possession of contr olled

su bs tanc e s o n M ay

25 , 2 00 7. On

June 5, 20 07, th e de fe nd ant p le d guil ty in H ard e man Co un ty Gene ral Sessions Court to one count of possession of a Sche dule I Icontrolled substanc e (c ocaine )

and on e c ount of po ss ession of a Sc he du le VI

c on tr oll e d s ub sta

nc e (m ari jua na ). Th e re po rt

a lso alleg ed that the defe ndant failed to r eport this a rre st a nd these c onvictions to her probation officer

. A hea ring in connec tion with this repor t w as held on Aug ust 13, 2007. A t that hear ing, both pa rties stipulated to these fa cts as stated in the pr obation violation repor t. The def

endant a sserted that she

was una war e that she w as on probation at the time of her arr est, an a ssertion she did not make at any time during th e J une 28 probation hearing . The trial c ourt revoke d the def endant’ s probation and

or de re d h e r t o s e rv e tw o y e ars in t he De pa rtme nt o f C or

re c tio n. Th is a

pp e a l f oll ow s.

A N A LY S IS

On appe al, the d e f

e n d a nt a rg ues that her

probation expired on Fe bruar y 4, 2007, and ther efor e the trial cour

t erre d by order ing he r into incarc eration. She contends that t h e s tate’s pr obation-4-

revoc ati o n re p o rt did not toll the expiration of the probationary period be cause the re port was not fil ed u n t il Febr

uary 20, 2007—afte r the probationary period ha d expired. She also argues that beca use the doc ument issued b y t h e t ri al cour t in J anuar

y 2007 was not an a

rre st warr ant, that document wa s also ineffe ctive to t oll the ex piration of t he probationary period. The state c ontends that the def

endant h as wa ived the issue on appe al, and if she has not, the expiration of the probationar

y period wa s proper ly

tolled, thus making the tria l court’s e x tension and subseque nt

revoc ation of her

probation prope r.

I nit ia lly , w e no te tha

t th e state a sse rt s th a t th e de fe nd ant ha s w a ive d th is i ssu e fo r f a ilure to timely appea l the trial court’ s order issued following the J une 28, 2007 hearing . See Te nn. R. App. P. 3 (noting that g ener ally
, the notice of appea l must be filed “within 30 day s afte r the date of entry of the jud g me nt a

pp e a le d fr om” ). Th e state a lso a sse rt s that the de fe nd ant h a s w a ive d a pp e a l of thi s issue by failingto raise a

contempora

neous objec tion to the trial c ourt’s extension of he r probation at the June 28, 2007 hearing

. See Tenn. R. App. P

. 36(a) (“N othing in this rule shall be c onstrued

as re quiring relief

be gra nted t o a party responsible for an error or who fa iled to take whatever action

wa s re as o n ab l y

av ai l ab l e t o p re v en to r n u l l i fy t h e h ar m fu l ef

fe ct o f a nerro r. ”)

. Ho we v er , al t h o u gh not specifica lly

stated by the defendant, we view the de fenda nt’s argument that the trial cour t was without a uthority to e x tend the defe ndant’s probation as an asser tion that the tr ial court wa s without subject matter jur isdiction to act as it did. As this court rece ntly noted in a simil ar c ase involving a def endant who did not cha lleng e the tria l court’s lac k of subject matter jurisdiction at a probation

revoc ation hear ing but who c halleng ed the lack of jurisdiction on appea l, a def endant ha s no power to waive subject matter jurisdi ction. See State v. Nick D efillipis, No. M2007-01647-CCA-R3-CD, 2008 WL 2388632, at *3 (Te nn. Crim. App. J une 12, 2008), pe rm. app. filed, ( Tenn. July 30, 2008). Ac c or din g ly , w e wi ll c on sid e r t his iss ue on

its me ri ts.

A trial cour

t’s author i t y

to revoke a suspende d sentenc e is derive d from Te nnessee Code Anno ta te d s e c tio n 4 0- 35 -3 10 , whic h p ro vid e s:
The trial judg e shall possess the powe r, at a ny time within the max imum ti me which was dire cted a

nd order ed b y

the cour t for such suspe nsion, after proce eding as provided in § 40-35- 311, to revoke and annul suc h suspension, and in suc h case s the orig inal judgme nt so r ender ed by the trial judge shall be in full force and ef fec t from t h e d a t e o f

t h e r e v o c a t i o no f

s u c h s u s p e n s i o n , an d

s h a l l b e e x e c u t e d

a c c o r d i n g l y.

See also Te nn. Code Ann. § 40- 3 5 -308(c) (a llowing the tr ial court to extend the defe ndant’s probation f

o r a p er i o d o f no m ore tha n two y ear s). While normally revoc ation or extension of a de fe nd ant’ s p ro batio n ma y on ly occur w ith in t

he pr ob a tio na

ry pe ri od , o ur

su pr e me c ourt

ha s h e ld that “ [t ]h e r

u nning of a def endant’ s probationar

y period may , howeve r, be inter rupted by the issuance of a revoc ation war

rant.” State v. Shaffe r, 45 S.W.3d 553, 555 (Tenn. 2001). The court in Shaff er continued:

I f the proba

tion revocation warrant i s s ued, within the term of the sentenc e, the iss ua nc e of th e warr ant com men ces t he re vo cat io n p roce edi ngs an d t here by in ter ru pts-5-

the running of t he probationary period “until such t ime as t he trial court [may ] hear and dete rmine the issue ra ised by the [warra

nt] .” McG uire v. State, 200 Te nn. 315, 29 2 S. W.2 d 1 90 , 1 93 (T e nn . 1 95 6) . T he int e rr up tio n of the pr ob a tio na

ry pe ri od is trig g ere d by

the issuance of the probation revocation warra nt and not by

service of the war rant on the de fenda

nt. Allen v. State, 505 S.W .2d 715, 717 (Tenn. 1974)

.

I d.

I n light of the Tenne ssee Supre me Court’s hol d i n gs in Shaffer , Allen, and Mc Guire, the defe ndant’s ar g ument that the probationary period wa s n o t tolled based on the late filing of the probation violation repor t is u n av ai ling be cause the trial cour t issued an orde r dema

nding the defe ndant’s ar

rest on January

30, 2007—less than a wee k befor e the defe ndant’s probationary period was set to expire. Consequently , resolution of this case will depend on the va lidity of the de fe nd ant’ s a sse rt ion

that th e un tit le d d oc ume nt o rd e ri ngthe de fe nd ant’ s arr e st w a s not a n a rr e st

war rant. T h e d ef

endant a rg ues that bec ause Te nnessee Code Annotated se ction 40-35-311( a) require s probation revoc ation proce eding s to be initiated by the issuance of an arr est war rant, and beca use the doc ument issued by the trial cour

t “does not identify

itself as a [w]arrant or any other document,” the trial court’ s order did not properly

toll the ex piration of the de fenda nt’s probation. The state c ontends that the docume nt issued by the trial cour

t was in fac t an ar

rest wa rra nt and there fore adequa

te to toll the ex piration of the de fenda nt’s probation.

Our criminal code states that when the trial court becomes aware of a defenda nt’s potential probation violation, “the trial judg e shall have the power to cause to be is sued under the trial judg e’s hand a w arr ant for the arr est of the de fenda nt a s in a ny other criminal ca se.” Te nn. Code Ann. § 40- 35

- 3 1 1 ( a ) ( 2 0 0 6 ) ( e mp h a s i s a d d e d )

. O u r c r i m i n a l c o d e d e f

i n e s anar r e s tw ar r an ta s “ ano r d e r , in writing , stating the substance of the complaint, direc ted to a prope r off icer , signe d by a mag istrate, and commandingthe ar

rest of the defe ndant.” I d. § 40-6-201. I n this c ase, a lthough the January 30, 2007 document orde ring the def endant’ s arr est was not labe led as a n arr est war

rant or a probation violation warra

nt, the order , which wa s signe d by trial judg e, desc ribed the pa rticular r ules of probation violated a

nd direc ted the off

icer to arr est the defendant. Thus, the orde r under revie w was
an a rr e st w arr ant a s de fi ne d in o ur c ri min a l c od e , a

nd , p ur su ant t o o ur

su pr e me c ourt ’s ho ldi ng s in Shaffe r and r elated c ases, its issuance tolled the expiration of the defe ndant’s probationary sentenc e. Thus, we conclude the trial court acte d proper ly in e x tending the defe ndant’s probation at the J une 2 8 h ea ri n g.
Reg ardingthe trial cour

t’s subsequent re vocation of the d ef en d ant’s probation, the rec ord establishes that the re quirements of section 40-35-311 wer e followed in notify ing the def

endant of her a lleg ed probation violation, and, at the probation re vocation hea ring , the par

ties ag ree d that the defe ndant violated her

probation by

being arr ested for possession of c ontrolled substance s and not

re po rt ingthi s arr e st t o h e r p ro batio n off ic e r. Thus , th e tr ia l c ourt a c te d w ith in i ts d isc re tio n in revokingthe def

endant’ s probation and or deringthe def endant to ser

ve her s en t en ce i n the Depa rtment of Corre ction. The de fenda nt is not entit led to relief

on this iss ue.-6- CONCL USI ON

I n consideration of the fore g oing a nd the record as a whole, the judgme nt of the trial cour t is affirme d.

_________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ D. KEL L Y THOMAS, JR ., J UDGE