# FILED July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION KIMBERLY SUTTON STREET, ) ) NO. 01C01-9707-CC-00250 Appellant, ) ) RUTHERFORD COUNTY VS. ) ) HON. J.S. DANIEL, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
FOR THE APPELLANT : CHARL ES R . RAY 211 Third Avenue North P.O. Box 198288 Nashville, TN 37219-8288 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELLEN H. POLLACK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM C. WHITESELL, JR. District Attorney General 303 Rutherfo rd Co. Judicial Bld g. Murfreesboro, TN 37130

OPINION FI LED:
AFFIRMED JOE G. RILEY, JUDGE2 OPINION The petitioner, Kimberly S utton Street, appeals the denial of her petition for post-conviction rel ief by the Circuit Cour t of Rutherford County. The petitioner contends that the tr ial court did not have j urisdiction to alter the conditions of her appeal bond; therefo re, the alteration resulted in “punishment.” She contends that serving the original sentence imposed by the trial court would violate her constituti onal right against doubl e jeopardy. The judgment of the tr ial court is AFFIRMED.
I. The petitioner was conv icted by a jury i n Rutherford County of possessi on of marijuana, possession of vali um, possession of drug paraphern alia, and driving under the influence, second offense. She was sentenc ed to concurrent terms of eleven (11) months and t wenty-nine (29) day

s. The sentences were to be served on supervis

ed probation after ninety (90) days served in confinement
. The petitioner filed a motion for new trial, which w

as denied. The petitioner remained on bond w hile she appealed to this Cour t. While the appeal of petitioner’s convicti ons was pending, she w as indicted in Sumner County for various drug offenses. The Di strict Attorney Gener al of Rutherford County on May 2, 1996, filed a motion to revoke the petitioner’s bond. A hearing was held on May 21, 1996, and the trial court issued an order amendin g the conditions of the petitioner’s release. The petitioner’s bond was raised $4,000. She was also “placed on supervised pr obation,” required to r

emain free of illicit drugs , ordered to submit to drug screeni ngs, and had to comply w ith a 7:00 p.m. curfew. The petitioner also alleges the “Draconian” measure of placing an electronic monitoring device around her ankle was foisted upon her.3 This Court subsequently affirmed the petitioner’s conv ictions. State v. Kimberly Sutton Street , C.C.A. No. 01C01-9508-CC-00257, Rutherford County (Tenn. Crim. App. filed September 19,1996, at Nashville). The Tennessee Supreme Court denied permissi on to appeal in an order filed M arch 3, 1997. The petitioner subsequently filed a petition for post-conv iction relief alleging, inter alia , that the increased conditio ns of her bond constituted punishment for double jeopardy pur poses; therefore, she had already served her sentence. The trial court di smissed the petition without a hearing, and the petitioner appealed.
II. The defendant alleges that the trial court’s modification of her bond w as made without jurisdict ion and constituted punishment, cau sing her to “more than serve the original

sentence imposed by the tri al court.” We respectfully disag ree.

A. A defendant may be admitted to bail pend ing appeal by the trial court where the j udgment was rendered, by

this Court , or by the Tennessee Supr eme Court. Tenn. Code Ann. § 40-11-113 (a)(1). Any of the abov e courts, judges or justices thereof, may incr ease or reduce the amount of bail re quired pending appellate review. Tenn. Code Ann. § 40-11-113(a)(3). If a court finds it necessary, a defendant as a condition of release on bail may be required to submit to supervised prob ation and have reasonable res trictions placed upon

her activities, mov

ements, associations and resi dences. Tenn. Code Ann. § 40-1 If a person a dmitted to bail on app

eal is indicted for or convicted of a felony while on bail, the bail “shall be revoked.” Tenn. Code Ann. § 40-11- 113(a)(4)(emphasis added). It appears the petitioner was extended merc y by the trial court since the statute mandates revocation. 4 11-116(b)(2), (3). 1 Thus, th e petitio ner’s con tention that a tri al court d oes not h ave jurisdiction to alter or modify bail after notice of appeal is without merit. In deed, an application for alteration of bail is one of the few instances where both the trial and appellate courts retain c oncurrent jurisdictio n. Raybin, Tennessee Criminal Practice and Procedure , § 33.104 (1985); see also Tenn. R. App. P. 8(a) . B. We also reject the petitioner’s argumen t that the alteration of bail constituted punishment for double je opardy purposes. To be put in jeopardy, a defendant must be “subject to ‘criminal prosecution ’ and put to trial.” United States v. Grisanti , 4 F.3d 173, 175 (2nd Cir. 199 3). A bail revocatio n hearing serves a regulatory

function rather than a criminal function. State v. Pennington , 952 S.W .2d 420, 422 (T enn. 1997)(cit ing United States v. Gris anti , supra ). Regulatory or remedi al purposes do not implicate d ouble jeopardy. Id. at 422- 23.
C. The actions of the trial court altering conditions of the de fendant’s release were appealable to this C ourt in accordance with Tenn. R. App. P. 8(a). See Tenn. Code Ann. § 40-11-144. The approp riateness of the modification could have been reviewed at that time. The petitioner failed to avail herself of this opportu nity.5 For the above reasons, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

__________________________ CURWOOD WITT, JUDGE

__________________________ LEE MOORE, SPECIAL JUDGE