# FILED
December 9, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE OCTOBER SESSION 1997

STATE OF TENNESSEE, ) ) APPELLEE, )

) No. 01-C-01-9611-CR-0 0481 ) ) Wilson County v. ) ) James O. Bond, Judge ) ) (Sentencing) BRENDA STARKS, ) ) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: J. Robert Hamilton John Knox Walkup Attorney at Law Attorney General & Repor ter 225 East Market Street 500 Charlotte Avenue Lebanon, TN 37087 Nashville, TN 37243-0497 Elizabeth B. Marney Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Tom P. Thompson, Jr. District Attorney General 203 Greentop Street Hartsville, TN 37074-0178 Robert N. Hibbett Assistant District A

ttorney General 111 Cherry Street Lebanon, TN 37087-3609

OPINION FILED:______________________________
JUDGMENT OF TRIAL COUR T REVERSED AND CAUSE DI SMISSED Joe B. Jones, Pre siding Judge2 

## O P I N I O N

The appellant, Brenda Starks (defendant), appeals asof right from the judgment of the trial court affirming the s entence, as amended, imposed by the General Se ssi ons Court of Wilson County. After the defendant entered a plea of g uilty topassing a worthless check, a Cla ss A misdemeanor, she was s entenced to serve 364 days at 100% in the Wils on County Jail. Her entire sentence was suspended and she was place d o n unsupervised probation. The General Sessions C ourt subsequently revoked the probation, and she appealed to the C riminal Court for Wilson County. The t rial court affirmed the judgmentof the General Session Court, but amended the judgment. The amended judgmentprovided for confinement in the Wilson County Jail for 364 days at 75%. In this court, the defendant contends:

[T]he sentence she was given by the Criminal Court for Wilson Co un ty, Tennessee, an eleven (11) month, twenty-nine (29) day se nte nce at seventy-five percent (75%), for the misdemeanor

offense of passing a worthless check, T.C. A. 39- 14-12 1, was excessive, in that the Court did not sentence Defendant pursuant to the applicable pr ovisions of the Ten nessee Criminal Sentencing R eform Act of 1989, T.C .A

. 40-35-101, et . seq.
After a thorou gh review of the recor d, the br iefssubmitted by

the parti es, and t he laws applicable to this case, it is the o pinion of this court the judgment of the trial court must be reversed and this cause dismissed bec ause the defendant has servedthe entire sentence prior to the institution of the revocation proceedings in the General Sessions C ourt. The defendant was arrested pursuant to an arrest warrant for passing a worthless checkin the amount of $56.99to Al’s Food Value on the 3rd day of December, 1994. The arrest warrant was is s ued on February 15, 1995. On M arch 1, 1995, the defendant entered a plea of guilty to the pass ing of a worthless chec k as alleged in the warrant. The General Sessions judge sentenced the de fendan t to serve 364 days i n the county jail at 100%. The service of the sentence w as suspended, and, as a condition of probation, the defendant was required to pay the amount of the worthless check to the victim and pay the court costs
. The defendant failed to pay either amount. On September 19, 1995, a garnishment

was issued. The

defendant’s employer advis ed the General Sessions clerk’s3

office the defendant had taken bankruptcy. On May 15, 1996, an “Order to

Show Cause”
was entered and served upon the defend ant. Th e order stated in part: “I f you fail to satisfactorily show cause as herein or dered, you may be foundguilty of contempt of court, your probation revoked, a nd you may be ordered to se rve the entire sentence adj udged against you in this cause.” The General Sessions judge r evoked the defendant’s probation and ordered her to serve th e 364 days at 100% on or about May 29, 1996. The defendant subsequently appealed the judgment of the General Sessions Court to the Criminal Court for W ilson Cou nty. The offense of pass ing a worthless check under the sum of $500 is a Class A misdemeanor. Tenn. Code Ann. §§ 39-14-121 (f) and - 105(1). The maximum punishment f or a Class A mi sdemeanor is a fine of $2,500 and confinement for eleven m o nths an d twenty-nine

days. Tenn. Code Ann. § 40-35- 111(e)(1) ( Repl. 1997). In this case,the General Sessions Court imposed the maximu m sentence of confinement for eleven months and twenty-nine day s. A fine was not assessed as part of the sentence. It is undisputed the General Sessions Court sentenced the defendant on March 1, 1995. Therefore, the defenda nt’s sentence expired on F ebruary 28, 1996 since the defendant had been on probation during th e period between March 1, 1995, and February 28, 1996. The probation revocation proceeding was not commenced until May 15, 1996, the date the show

cause order was filed. The General Sessions Court’ s order revoking the probation is not dated. Ho wever, it appears the hearing and subsequent r evocation occurred on or about May 29, 1996, the d ate set for th i n the show cause order. The defendant made a $250 bond on May 31, 1996. It is obvious that the defendant’s sentenc e had expi red appro ximately two and onehalf months before the revocation pr oceeding was instituted by the filing of the show cause order. Co nsequen tly, the General Sessions Court did not have jurisdiction to revoke the defendant’s probation. According to the app licab le statute, a “trial jud ge shall possess the pow er, at any time within the maximum tim e which was directed and ordered by the court for such suspension . . . to revoke and annul s uch suspension. ” Tenn. Cod e Ann. § 40--35-310 (Repl. 1997) (emphasis added). While a garnis hment wasissued by the General Sessions4

Court Clerk on S ept ember 19, 1995, the garnishment di d not toll the running of the defendant’s sentence. Only the issuance of a revocation warrant -- the show

cause order in thi s case -- can toll the running of a sente nce and prevent the sentence from ex piring before a revocation hearing can be conducted. Allen , 505 S.W.2d at 717. In short, the defendant’s sentence had expired before the revocation pr oceedings
were instituted. Thus, the General Sessions Court did not hav e jurisdiction to

revoke the defendant ’s prob ation and order her to serve the entire sentence. Given these circumstances, the defendant is entitled to the reversal of the trial court’s judgmentand the dismissal of the revocation proceedings.

_________

______________________ ____________

_ JOE B. JONES, PRESIDIN G JUDGE

CONCUR:

______________________________________ WILLIAM M. BARKER, JUDGE

______________________________________ JOE G. RI LEY, JUDGE