# FILED

June 4, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON MARCH 1998 SESSION

STATE OF TENNESSEE, ) ) No. 02-C-01-9709-CC-0 0366 APPELLEE, )

) Benton County v. ) ) Honorable Julia n P. Guinn, Judge ERIC M. FLORENCE, ) ) (Sentencing) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Terry J. Leonard John Knox Walkup Attorney at Law Attorney General & Repor ter 9 North Court Square 425 Fifth Avenue, North P. O. Box 957 Nashville, TN 37243-0497 Camden, TN 38320 Douglas D. Himes Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, TN 37243-0493 G. Robert Radford District Attorney General 111 Church Street P. O. Box 686 Huntingdon, TN 38344-0686 Jerry W. Wallace Assistant District A

ttorney General P. O. Box 637 Parsons, TN 38363-0637

OPINION FILED: __________________

REMANDED
GARY R. WADE, JUDGE2 

### O P I N I O N The defendant, Eric M. Florence, entered pleas of guilt in the General Sessions Court of Benton County to possession of marijuana and unl awful possession of alcohol. He was sentenced to eleven months and twenty-nine days in the county jail; all b ut two days were suspended on each count. The sentences were to be concurrently served. The defendant incurred additional charges and his probation was revoke

d. He served a portion of his general sessions s entence and then moved the court to suspend the remainder. The general ses sions court denied the motion. The defendant appealed to the cir cuit court. That court affirmed the decision of the general sess ions court.

In this appeal of right, the de fendant contends that the Circuit Court of Benton County, Tennessee, erred by failing to suspend the ba lance of the sentence imposed by the general sessions court. For the reasons stated herein, the cause must be remanded to the circuit court for further proce edings consistent with this opinion.

In December 1995, the defendant en tered pleas of guilt to simple possession of marijuana and unlaw ful possession of alcohol. When he reported to jail, he had marijuana in hi s possession. A revoc ation warrant issued and , at the first scheduled hearing on the warrant, the defendant, who by then had apparently served his origi nal two-day sentence, failed to appear.

At a rescheduled hearing on May 8, 1996, the general sessions court revoked probation on the ini tial charges. On June 10,the defendant pleaded guilty in circuit court to introducing a controlled substance into a prison facility. The circuit court sentenced the defendant to serv e three (3) years: one (1) year in the jai l and3 two (2) years on s upervised probation.

On September 19, 1996, the defendant filed a motio n asking the general sessions judg e to suspend the balance of the defendant’s s entence on the original charges. The motion was withdraw n January 29, 1997. Almost fiv e months later, the defendant filed a second m otion asking that the balance of his sentence for the orig inal charg es be suspend ed and that he s erve the r

emainder of the

time on supervised probation. Five days later, the general sessions judge overruled the motion. The defendant made bail on July 3, 1997, after appealing to the circuit court.

The circuit court identified the issue on appeal as whether the general sessions judge was c

orrect in revoking

the defendant’s probation. On Augu st 21, 1997, the circuit court r uled (a) that the defendant had not prope rly presented the issue to the circuit cour t and decided (b) that judgment s regarding sentences on violation of probation from g eneral sessions court shou ld be free from tampering. At the conclusion of the hearing, the trial court made the follow ing ruling: [I]n this particular cas

e the length of sentence from the General Sessions Court is not before this Court. I have on occasions in the past had that issue put up here and have ruled upon it. But that’s not the question that the Court has to grapple w ith now. That sentence w as fixed by the General Sess ions Judge. It was not appealed and it is firm. It has reached finality. The only question that’s before this C ourt is whether the Gener al Sessions Judge was co rrect in the revoki ng of an earlier probated sentence upon a second conv iction involving controlled substances . And this Court has to find th at that Judge was absolutely and totally appropriate in doing tha t. If he d idn’t do t hat justi ce would, qu ite simpl y, go out the window the very same day that he refused to act or react. The people of Benton County have put him there to do precisely that. The relief that you’re looking for in this case is a suspended sentence. And that issue is not bef ore this Court. You get a suspende d sentence from the General Sessions Judge, sir . That’s wh ere you’re going to ha ve4 to find your relief. Draw an order overruling it in this Court, sir. (Emphasis added).

I

The defendant’s probation on the initi al offenses was revoked on M ay 8, 1996. The defendant was ordered to serve his sentence in i ts entirety beginning "immediately." There is no i ndication in the record that the defendant ever appealed that action. According to Tenn. Code Ann. § 27-5-108 a party may appea l a decision from the general ses sions court to the circu it court within ten day s. "If no appeal is taken within the time provided, then execution may issue." Tenn. Code Ann. § 27-5-108(d).

Tennessee Code Annotated § 27-3-131 provides as follows: (a) Notwithstanding

Rule 5(c)(2) of the Tennessee Rules of Criminal Procedure to the c ontrary, the defendant may in any case covered by such rule appeal a verdi ct of guilty or the sentence imposedor both to the circuit or criminal court fo r a trial de novo with or without a j ury. (b) Demand for a jury tr ial shall be made at the time of filing an appeal under § 27-5- 108, to the circuit court or criminal court. If such demand is not made at the time of filing the appeal, the rig ht to a trial by jury is waived.

Because no appeal was filed w ith regard to the rev

ocation, the May 8, 1996, revocation of probation w as final. Contrary to the finding by the circui t judge, the propriety of the rev ocation was not the issue before the circuit court.

II In our view, the is

sue appealed to the circuit c ourt was the propriety

of the general sessions judge's June 24, 1997, order deny ing the defendant's motion for a reduction, alteration, or suspension of the sentence:5 The court shall retain full j urisdiction over the defendant during the term of such sentence and may reduce or modify the sentence or may pl ace the defendant on probation supervision w here otherwise elig ible. Following the first

application, applications to reduce or to alter the manner of the servi ce of the sentence may be made at no less than two (2) month intervals. Tenn. Code Ann. § 40-35-314(c).

Once the general sessions judge denied the defendant's req uest to suspend the sentence, the defendant had ten day s to appeal. Tenn. Code Ann. § 27-5-108. As the state correctly points out, there is no notice of appea l contained in the record. The record does, h owever, contain an appeal bond dated July 3, 1997, and an order dated July 8, 1997, from the circuit judge s etting the matter for trial . In order to perfect an appeal, the defendant nee d only post a bond in the g eneral sessions court withi n ten days, "usually th e same bond originally set for bail." 9 Raybin, Tennessee Practice § 7.13; Tenn. Code Ann. §§ 27-5-103, - 105, -108.

Tennessee Code Annotated § 27-5-108(c ) provides that any appeal taken from the general sessions court to the circuit court will be de novo. In this case, the circuit judge heard testimony from the defend ant and the defendant's father in supp ort of the def endant's mot ion for a suspe nded sentenc e. The judge mistakenly believed h e did not have authority to rule on the issue of suspendi ng the sentence. For that reason, this cause must be remande d to the circuit court for a ruling on the issue of whether to suspend all or any part of the defend ant's sentence.

If the circuit judge deter mines that the motion for suspension of sentence should be denied, as the g eneral sessions judge di d, a determination needs to be made as to how much additional time the defendant must serv e.6 Apparently the defendant has not returned to the county jail to complete his sentence on the original c harges of unlawful possessi on of alcohol and possession of marijuana even though the tr ial judge ordered that he s erve the remainder of that sentence "immediately." The rec ord is unclear as to how much time the defendant has served toward sa

tisfying the sentence impos ed after the revocation of probation. One pleading suggests the defendant had served four months. A second indicates he has serv ed forty-one days. The defendant tes tified in the final hearing on August 21, 1997, that he had served fifty-nine days of that sentence. The record is also unclear as to the defendant's status betw een the May 8, 1996 revocation hearing and the motion made in June 1997 for suspensi on of sentence. It does appear that the defendant serv ed a year in continuous confinement on the conviction for introduci ng drugs into jail sometime between June 10, 1996, and J une 19, 1997.

In summary, the cause is remanded to the circuit court for a determination of the request for r eduction or modification of the ori ginal sentence.

_________________________________ GARY R. WADE, JUDGE CONCUR:

(SEE BELOW) JOE B. JONES, PRESIDING JUDGE

__________________________________ JERRY L. SMITH, JUD GE

The Honorable Joe B. Jones died May 1, 1998, and did not pa rticipate in this opinion. We acknowledge his faithful ser vice to the Tennessee Court of Criminal Appeals, both as our colleag ue and as our Presiding J udge.