IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 23, 2012

STATE OF TENNESSEE v. ALVIN DONELL DAVIS

Appeal from the Criminal Court for Hamilton County

No. 264695 Don W. Poole, Judge

No. E2012-00398-CCA-R3-CD - Filed February 25, 2013

The Defendant, Alvin Donell Davis, appeals the revocation of his probation by the Hamilton

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County Criminal Court. On appeal, the Defendant argues that the trial court was without

authority to revoke his probation because his sentences had expired. After a review of the

record, we conclude that the trial court did not abuse its discretion in revoking the

Defendant’s probation on Count 2 of his convictions and affirm the trial court’s order of

probation revocation and incarceration on that count. However, because the sentences in

Counts 1 and 3 expired prior to the filing of the revocation warrant, the trial court lacked the

authority to revoke the Defendant’s sentence on those counts; therefore, the orders of

revocation and incarceration on Counts 1 and 3 are reversed and vacated.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court

Affirmed in Part; Reversed in Part

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON,

P.J., and THOMAS T. WOODALL, J., joined.

Michael Thomas, Chattanooga, Tennessee, for the appellant, Alvin Donell Davis.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney

General; William H. Cox, III, District Attorney General; Jason Demastus, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

In accordance with the policy of this court, we will use the name of the Defendant as it is listed in the

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indictment, but for the purpose of brevity, we will omit the multiple aliases also included therein. We also

note that the name suffix senior appears on several documents in the technical record. 
On December 5, 2007, the Defendant pled guilty to a violation of the Motor Vehicle

Habitual Offender (MVHO) Act, a Class E felony; possession of less than one-half gram of

cocaine for resale, a Class C felony; and attempted tampering with evidence, a Class D

felony. See Tenn. Code Ann. §§ 39-12-101, 39-12-107, 39-16-503, 39-17-417, 55-10-616.

Pursuant to the terms of the guilty plea agreement, he was sentenced as a Range I, standard

offender and his sentenced was structured as follows: Count 1, MVHO violation, two years,

the balance of which was to be suspended following service of eleven months and twentynine days, and he was to be placed on intensive probation for two years thereafter; Count 2,

possession of less than one-half gram of cocaine for resale, four years, consecutive to Count

1, and suspended to intensive probation; and Count 3, attempted tampering with evidence,

two years, concurrent with Count 2, but likewise consecutive to Count 1, and suspended to

intensive probation. The Defendant was released from custody to intensive probation on

February 18, 2008.

On March 10, 2009, following the filing of a violation report, the trial court issued a

capias for the Defendant’s arrest. The capias was not executed until August 28, 2009. The

trial court upheld the violation warrant on December 9, 2009 after a hearing. To reflect its

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order of partial revocation, the trial court entered amended judgment forms. The amended

forms reflected that the Defendant’s probationary sentence in Count 1 was revoked and

ordered into execution. The probationary period in Count 2 was extended by two years, for

a total of six years on probation; the incarcerative sentence of four years remained

unchanged. The amended form reflected that Count 2 was to be served consecutively to

Count 1. As for Count 3, the amended form showed that the probationary sentence was

revoked and ordered into execution; the form was silent as to consecutive or concurrent

service of the sentence. The Defendant was released from custody on March 23, 2010. The

Tennessee Board of Probation and Parole issued a “Probation Certificate” releasing the

Defendant on Counts 1 and 3 from the two-yearsentences, and noting his sentence expiration

date on those counts as March 29, 2011.

On July 21, 2011, the trial court issued a capias for the Defendant’s arrest after a

second violation report had been filed. The capias was executed on August 24, 2011. At the

subsequent revocation hearing, the Defendantstipulated that he violated the conditions of his

probation but requested another chance. At the outset of its ruling, the trial court noted the

original structure of the Defendant’s sentence: “[H]e received a two-year sentence on count

one. Count three was consecutive to that two years but count two was also consecutive to

count one, which was a four-year sentence. . . . So it technically would have been a six-year

sentence.” The trial court further stated that, at a previous revocation hearing in December

2009, “I think the thought at that time was that . . . a short term of incarceration at the

 A transcript of this hearing is not included in the record on appeal.

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Department of Correction[] would wake [the Defendant] up. And that was the hope and

that’s the reason the four-year sentence was not revoked, because that would have been a

more lengthy sentence.”

The trial court, thereafter, revoked the Defendant’s probationary sentences on all three

counts and ordered that he serve the remainder of his sentences in the Department of

Correction (“DOC”). In so ordering, the trial court stated, “The second count, or the third

count, is running concurrent with . . . count two, so that should be made clear in regard to

this.” Revocation orders to that effect were entered February 1, 2012. This appeal followed.

ANALYSIS

The Defendant contends that the“trial court erred as a matter of law in its decision to

effectively restructure the [Defendant’s] original sentence involving Counts 1 and 2 from

concurrent to consecutive thus requiring him to potentially serve an additional two years

beyond his original sentence in violation of [Tennessee Code Annotated section] 40-35-310,

-311.” Specifically, he alleges the following error:

[T]he trial court ordered the balance of his sentence into execution. The effect

of the judgment violates T.C.A. § 40-35-311 since the trial court failed to

adhere to the original sentence from 2007. The error arises when the court, in

2009, ordered Counts 1 and 3 into execution. The court mistakenly ordered

[Count] 3 into execution believing the sentence was to run concurrent to Count

1 instead of Count 2. Based upon this mistake, the court wrongfully ordered

that probation on Count 2 be extended by two years. This mistake led directly

to the [Defendant] violating his probation when the probation period should

have already extinguished.

The Defendant’s primary argument is that his sentences had expired. The statement

of the issue as presented by the Defendant is based upon a factual misstatement that Counts

1 and 2 were at one point ordered to run concurrently with one another. Such is not the case.

At no point in these proceedings did the trial court order the four-year sentence in Count 2

to be served concurrently with the sentence in Count 1. Equally significant is the fact that

the sentence is Count 2 was never ordered into execution prior to the order entered February

1, 2012.

The State concedes that the sentence in Count 1 had expired before the filing of the

revocation warrant and that the trial court had no authority to revoke the Defendant’s

probation on that count. The State then argues that the Defendant’s sentences in Counts 2

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and 3 had not yet expired before the filing of the warrant, and thus, the trial court properly

revoked the Defendant’s probation on those counts. We agree with the State in part.

A trial court’s authority to revoke a suspended sentence is derived from Tennessee

Code Annotated section 40-35-310, which provides that the trial court possesses the power

“at any time within the maximum time that was directed and ordered by the court for the

suspension, . . . to revoke . . . the suspension” and cause the original judgment to be put into

effect. A trial court may revoke a sentence of probation upon finding by a preponderance of

the evidence that the defendant has violated the conditions of release. Tenn. Code Ann. §

40-35-311(e).

Generally, revocation may occur only within the probationary period. Alder v. State,

108 S.W.3d 263, 267 (Tenn. Crim. App. 2002) (citing State v. Shaffer, 45 S.W.3d 553, 555

(Tenn. 2001); Tenn. Code Ann. § 40-35-310)). However, if a trial court issues a probation

revocation warrant within the term of probation, it tolls the limitation of time in which the

court may act to revoke probation. Shaffer, 45 S.W.3d at 555; State v. Clark, 970 S.W.2d

516, 518 (Tenn. Crim. App. 1998). Specifically, it is the filing of a revocation warrant, not

the filing of the report nor the service of the warrant on the defendant, that tolls the

limitations period. See Shaffer, 45 S.W.3d at 555; State v. Terry Bonds, No. E2011-01199-

CCA-R3-CO, 2012 WL 1956701, at *8 (Tenn. Crim. App. May 31, 2012), perm. app. denied,

(Tenn. Nov. 20, 2012). If consecutive sentences are involved, the court may revoke the

suspended sentence in only those cases in which the term of the individual sentence had not

expired before filing of the revocation warrant. State v. Anthony, 109 S.W.3d 377, 381-82

(Tenn. Crim. App. 2001).

The confusion in what would otherwise be a straight-forward case arose from the trial

court’s use of a judgment form designated as an amended judgment in the place of an order

to revoke the Defendant’s probation. At the December 9, 2009 hearing, using these forms,

the trial court revoked the Defendant’s probationary sentences in Counts 1 and 3 and ordered

execution of those sentences. The court extended the probationary term on Count 2 by two

years. The amended judgment form for Count 3 was silent as to the concurrent or

consecutive nature of the sentence with the other counts; the amended judgment form for

Count 2 did note that the sentence was consecutive to Count 1. The plea agreement and

original judgment forms reflect that the sentences in Counts 1 and 3 were to be served

consecutively to one another, with the sentence in Count 3 running concurrently with the

sentence in Count 2. Nonetheless, we ascertain that the DOC, upon receipt of the amended

judgment forms, treated the sentences in Counts 1 and 3 as concurrent terms.

The State correctly notes that it is not entirely clear what occurred at the December

9, 2009 hearing because a transcript of that proceeding is not included in the appellate record.

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Regardless of what transpired at the hearing, the trial court did not have the authority to

change the service of Counts 1 and 3 from consecutive to concurrent on December 9, 2009.

Upon finding that a defendant has violated the conditions of probation, the trial court may

revoke the probation and implement one of the following: (1) order incarceration; (2) order

the original probationary period to commence anew; or (3) extend the remaining probationary

period for up to two additional years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn. 1999); see

Tenn. Code Ann. §§ 40-35-308, -310, -311. The trial court cannot restructure the sentence,

as it could following a revocation of a community corrections sentence, and “resentence the

defendant to any appropriate sentencing alternative, including incarceration . . . . ” See Tenn.

Code Ann. § 40-36-106(e)(4); State v. Taylor, 992 S.W.2d 941, 945 (Tenn. 1999).

Upon receipt of the amended judgment, the DOC executed the sentences for both

Counts 1 and 3. In spite of the fact that the trial court lacked the authority to order execution

of the sentence in Count 3 independently of the sentence in Count 2, Tennessee Code

Annotated section 40-28-129 confers on the DOC the statutory responsibility of “calculating

the sentence expiration date and the earliest release date of any felony offender sentenced to

the department of correction and any felony offender sentenced to confinement in a county

jail or workhouse for one (1) or more years.” The Tennessee Board of Probation and Parole

issued a “Probation Certificate,” which provided that the Defendant’s two-year sentence on

Count 1 and 3 expired on March 29, 2011. The revocation warrant was not filed until July

21, 2011. Accordingly, the Defendant’s sentences in Counts 1 and 3 expired prior to the

filing of the violation warrant.

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Consequently, the service of the four-year sentence in Count 2 began on March 29,

2011, and was obviously still in effect when the violation warrant was filed in July of that

year. At the probation revocation hearing, the Defendant stipulated that he violated the

conditions of his probation but merely requested a second chance. We have held “that an

accused, already on probation, is not entitled to a second grant of probation or another form

of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999

WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999), perm. app. denied, (Tenn. June 28,

1999). The trial court acted within its discretionary authority to revoke the Defendant’s

probation on Count 2 and impose his original four-year sentence. See Tenn. Code Ann. §§

40-35-310, -311(e). Accordingly, the decision of the trial court, finding that the Defendant

violated the conditions of his release, is affirmed.

CONCLUSION

The amount of time served by the Defendant in custody on the two-year sentence for Counts 1 and Count 3

3 was not increased by the trial court’s error. He went into custody on August 28, 2009, and was released

March 23, 2010. In fact, his service on Count 3 was thereby reduced.

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Based upon the foregoing reasoning and authorities, the orders revoking the

Defendant’s probation in Counts 1 and 3 are reversed and vacated. The order revoking the

Defendant’s probation in Count 2 is affirmed.

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D. KELLY THOMAS, JR., JUDGE

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