FILED

July 16, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

 OCTOBER 1995 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) No. 03C01-9501-CR-00017

 )

) Washington County

v. ) 

) Honorable Lynn W. Brown, Judge 

)

PHILLIP BOWLING, ) (Sentencing)

) 

Appellant. )

For the Appellant: For the Appellee:

David F. Bautista Charles W. Burson

District Public Defender Attorney General of Tennessee

 and and

Deborah B. Huskins George Linebaugh

Assistant Public Defender Assistant Attorney General of Tennessee 

142 E. Market Street 450 James Robertson Parkway

Johnson City, TN 37601 Nashville, TN 37243-0493

David E. Crockett

District Attorney General

Route 19, Box 99

Johnson City, TN 37601

and

Joe C. Crumley, Jr.

Assistant District Attorney General

Washington County Courthouse

P.O. Box 38 

Jonesborough, TN 37659

OPINION FILED:____________________

AMENDED JUDGMENT VACATED; REMANDED

Joseph M. Tipton

Judge
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O P I N I O N

The defendant appeals as of right from three, concurrent twelve-year

sentences that the Washington County Criminal Court imposed upon him after it

revoked his suspended sentence. He contends that the trial court erroneously

enhanced the three, ten-year sentences it previously imposed in this case by applying

improperly two enhancement factors and ignoring an applicable mitigating factor. 

Because we conclude that the trial court was without the authority to increase the

defendant’s sentence, we vacate the amended judgments of the trial court and order

that the defendant serve the original ten-year, concurrent sentences.

On May 7, 1992, the defendant pled guilty to three cocaine-related Class

B felonies and received three, concurrent ten-year sentences in the custody of the

Department of Correction. Judgments of conviction were entered on that date and he

was transferred to the Department of Correction and began serving his time. The

Department of Correction placed him in the boot camp program, see T.C.A. § 40-20-

201, -207, and then, effective April 13, 1993, placed him on probation for the remainder

of his sentences. See T.C.A. § 40-20-206. 

After issuing a probation revocation warrant in August 1993, the trial court

entered a series of orders. The first stated that the defendant was to serve ten years in

the community corrections program, from October 15, 1993 to October 15, 2003, and

listed conditions of his release. The second order revoked the defendant’s probation

and ordered that he serve ten years in the Department of Correction but noted, in a

footnote, that the defendant was placed on the alternative community corrections

program. The third order provided for the defendant’s immediate release and stated

that he was to be placed in the community corrections program.
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In May 1994, the trial court issued a warrant alleging that the defendant

again violated his probation. After a hearing, the trial court revoked the defendant’s

suspended sentence and sentenced him to twelve years in the Department of

Correction for each of the three offenses. The trial court cited the defendant’s history of

criminal behavior, inability to abide by conditions of a sentence involving release into

the community, and lack of mitigating factors. The trial court entered amended

judgments that reflect that the defendant’s sentences were increased upon revocation

of a community corrections sentence. Although we agree with the trial court that 

enhancement of the defendant’s sentence would have been appropriate had the court

been revoking a sentence under the Tennessee Community Corrections Act of 1985,

see T.C.A. § 40-36-106(e)(3), it was not proper under the facts of this case.

We begin our analysis by recognizing the distinction between the

revocation of a community correction sentence and a probation revocation. When a

trial court revokes a community corrections sentence under the Tennessee Community

Corrections Act of 1985, it has the authority to “resentence the defendant to any

appropriate sentencing alternative, including incarceration, for any period of time up to

the maximum sentence provided for the offense committed, less any time actually

served in any community-based alternative to incarceration.” T.C.A. § 40-36-106(e)(3). 

By contrast, a trial court that determines that a probation violation has occurred can

cause execution of the original judgment as it was originally entered, see T.C.A. § 40-

35-310, -311, or can modify the defendant’s conditions of supervision, including

extending the defendant’s probationary period for up to two years. See T.C.A. § 40-35-

308.

In this case, the defendant initially received a ten-year sentence in the

Department of Correction. Once the defendant was transferred to the Department of

Correction, the trial court lost jurisdiction. See T.C.A. § 40-35-212(d). Pursuant to
4

T.C.A. § 40-20-206, when the Department of Correction placed the defendant on

probation for the remainder of his ten-year sentence, the trial court had jurisdiction to

use the procedures set forth in T.C.A. § 40-35-311 to revoke the probation. Although

the trial court properly ordered that the defendant’s probation be revoked and that he

serve his ten-year sentence in the Department of Correction, see T.C.A. § 40-35-

311(d), it also ordered that the defendant serve ten years in the community corrections

program, from October 15, 1993 until October 15, 2003.

It is apparent that the trial court intended to convert the defendant’s tenyear sentence into a community corrections sentence. However, neither the

Community Corrections Act nor the statutes dealing with probation authorize a court to

impose a new sentence under the Act after a defendant has partially served his

sentence in the Department of Correction. 

Although the trial court lacked jurisdiction to impose a community

corrections sentence when it determined that the defendant violated his probation, it did

have the authority to order the defendant’s participation in the community corrections

program as a condition of his continuing on probation. See T.C.A. § 40-35-108

(allowing more onerous probation conditions resulting from a revocation hearing);

T.C.A. § 40-36-106(f) (providing for use of a community corrections program as a

condition of probation). Thus, the orders the trial court entered in 1993 effectively

resulted in the modification of the defendant’s conditions of probation, not the

imposition of a community corrections sentence.

When the trial court revoked the defendant’s suspended sentence in

August of 1994, the defendant was serving the remainder of his original ten-year

sentence on probation, and the trial court was to proceed under the probation

revocation statutes. The trial court had the authority to commence execution of the
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original judgment as it was originally entered, see T.C.A. § 40-35-310, -311, or the

authority to modify the defendant’s conditions of supervision and to extend his

probationary period for up to two years, see T.C.A. § 40-35-308, but it did not have the

authority to increase the defendant’s original sentence.

Accordingly, the amended judgments of conviction of the trial court are

vacated and the case is remanded to the trial court for reinstatement of the ten-year

sentences imposed in the original judgments of conviction.

 

Joseph M. Tipton, Judge

CONCUR:

 

John H. Peay, Judge

 

David G. Hayes, Judge