Opinion
No. E2000-00701-CCA-R3-CD.
Filed April 30, 2001. Assigned on Briefs December 13, 2000.
Appeal as of Right from the Criminal Court for Johnson County No. 2471; Lynn W. Brown, Judge.
Remanded for Modification.
Steve McEwen, Mountain City, Tennessee; David F. Bautista and Ivan M. Lilly, Johnson City, Tennessee, for the appellant, Michael Colvin.
Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; David Crockett, District Attorney General; and Steve Finney, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the court, in which James Curwood Witt, Jr.,J., joined. David G. Hayes, J., filed a dissenting opinion.
OPINION
I. Factual Background
The appellant, Michael Colvin, pled guilty in the Johnson County Criminal Court to one count of possession of an explosive device, a class A misdemeanor, and to one count of reckless endangerment, a class A misdemeanor. The judgments as entered by the trial court incorrectly classify the appellant as a standard Range I offender. The trial court sentenced the appellant to two consecutive sentences of eleven months and twenty-nine days in the Johnson County Jail and further ordered that the appellant serve thirty percent (30%) of his sentences in confinement before becoming eligible for work release or other rehabilitative programs. The trial court suspended service of both the appellant's sentences, placed him on probation, and imposed certain special conditions.
The record does not contain an explanation of the facts underlying the appellant's guilty pleas.
Subsequently, the appellant pled guilty to violating his probation by absconding. The trial court revoked the appellant's probation and ordered the appellant to serve one hundred percent (100%) of his sentences in confinement. On appeal, the appellant raises the following issue for our review: whether the trial court erred by ordering the appellant to serve one hundred percent (100%) of his sentences in confinement pursuant to the appellant's probation revocation.
II. Analysis
The appellant contends that, pursuant to his guilty plea to violating his probation, the trial court inappropriately ordered him to serve one hundred percent (100%) of his sentences in confinement. Specifically, the appellant argues that the maximum term the trial court could have ordered him to serve before becoming eligible for "release" is thirty percent (30%), the percentage set by the trial court in the original judgments. The State agrees that the trial court erred by exceeding the percentage of incarceration imposed in the appellant's original judgments and specifically asks this court to remand for resentencing. Upon review of the issue, we agree that the trial court erred, but we reach our conclusion through different reasoning.
Initially we note that the judgments incorrectly classify the appellant as a standard Range I offender. As this court has found, "[t]he sentencing ranges established in Tennessee Code Annotated §§ 40-35-105 through 109 do not apply to misdemeanor sentences." State v. Lauren E. Leslie, No. 03C01-9804-CR-00125, 1999 WL 153773, at *4 (Tenn.Crim.App. at Knoxville, March 23, 1999), perm. to appeal denied, (Tenn. 1999);see Tenn. Code Ann. § 40-35-105 (1997), Sentencing Commission Comments. Accordingly, the appellant should not have been considered a standard Range I offender in determining the appropriate sentences for his misdemeanor convictions.
In misdemeanor sentencing, the trial court must first establish the length of the sentence(s) to be imposed. Tenn. Code Ann. § 40-35-302(b) (1997). In the present case, the trial court correctly imposed on the appellant two consecutive terms of eleven months and twenty-nine days incarceration in the Johnson County Jail, the maximum possible sentence for his two class A misdemeanor convictions. See Tenn. Code Ann. § 40-35-111(e)(1) (1997). After setting the length of the misdemeanor sentences,
the court shall fix a percentage of the sentence which the defendant shall serve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty status and related rehabilitative programs.
Tenn. Code Ann. § 40-35-302(d). Moreover, "[t]he misdemeanor sentencing statute provides that the percentage of the sentence to be served in confinement before the defendant is eligible for rehabilitative programs shall not exceed 75 percent." State v. Russell, 10 S.W.3d 270, 278 (Tenn.Crim.App. 1999). Furthermore, the percentage shall be considered zero percent if there is no percentage indicated on the judgment. Id. This court has also noted that
Section 40-35-302 contemplates that trial courts will treat separately the issues of "percentage" and probation. The trial court should state the percentage that applies and insert the figure into the appropriate percentage blank on the standard judgment form. Terms of probation should likewise be stated and reflected on the judgment form. Trial courts which express the term of probation but omit the percentage run the risk of the appellate court applying a zero percentage . . . with the result that the defendant may avoid any confinement through furlough or other "rehabilitative" programs, despite the court's attempt to allow probation only after a stated period of time is served in confinement.
State v. Scott Wyatt, No. M1998-00470-CCA-R3-CD, 1999 WL 1266338, at *6 (Tenn.Crim.App. at Nashville, December 29, 1999), perm. to appeal denied, (Tenn. 2000) (citation omitted). However, we have also found that
[w]hen this court has been faced with a transcript of the sentencing hearing clearly indicating the trial court's intention that the defendant's percentage is not zero percent . . . we have deferred to the trial court's express pronouncement as reflected in the transcript.
Russell, 10 S.W.3d at 278.
In the instant case, the trial court suspended the appellant's sentences and granted the appellant probation, which the appellant subsequently violated. The judgments clearly reflect that the trial court's intention was that the appellant serve thirty percent (30%) of his eleven month and twenty-nine day misdemeanor sentences in confinement before becoming eligible for work release or other rehabilitative programs. However, when the trial court revoked the appellant's probation, it ordered the appellant to serve one hundred percent (100%) of his sentences in confinement.
In regard to probation revocations, Tenn. Code Ann. § 40-35-310 (1997) (emphasis added) provides that:
[t]he trial judge shall possess the power, at any time within the maximum time which was directed and ordered by the court for such suspension . . . to revoke and annul such suspension, and in such cases the original judgment so rendered by the trial judge shall be in full force and effect . . . .
Additionally, Tenn. Code Ann. § 40-35-311(d) (1997) (emphasis added) provides that,
[i]f the trial judge should find that the [appellant] has violated the conditions of probation and suspension by a preponderance of the evidence, the trial judge shall have the right . . . to revoke the probation and suspension of sentence and cause the [appellant] to commence the execution of the judgment as originally entered . . . .
Thus, according to the language of Tenn. Code Ann. § 40-35-311(d), because the original judgments reflect that the appellant would be eligible for work release or other rehabilitative programs after service of thirty percent (30%) of his sentences, the trial court's revocation order requiring that the appellant serve one hundred percent (100%) of his sentences in confinement is clearly outside the scope of the trial court's authority. See State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999);see also Tenn. Code Ann. § 40-35-302(d) ("[t]he percentage [to be served in confinement] shall be . . . not in excess of seventy-five percent (75%)"). The trial court is authorized, upon the revocation of probation, to reinstate only the original sentence(s). See State v. Taylor, 992 S.W.2d 941, 945 (Tenn. 1999). We agree with the appellant and the State that the trial court erred in ordering the appellant to serve one hundred percent (100%) of his sentences in confinement instead of reinstating the original judgments ordering the appellant to serve thirty percent (30%) of his sentences before becoming eligible for work release or other rehabilitative programs.
In connection with this issue, we also note that Tenn. Code Ann. § 40-35-302(b) provides that "the [appellant] shall be responsible for the entire sentence" imposed by the trial court. Accordingly, although the appellant need only serve thirty percent (30%) of his sentences before becoming eligible for work release, furlough, or trusty status, "the administrative authority governing the rehabilitative program shall have the authority in its discretion to place the [appellant] in such programs as provided by law." Tenn. Code Ann. § 40-35-302(d) (emphasis added). Put another way,
[t]he percentage contemplated by subsection (d) does not establish a per se date for release from confinement altogether because release depends upon the future discretionary act of an administrative agency and, in any event, any release is part of a structured "rehabilitative program" and may only be partial or episodic in nature.
Leslie, No. 03C01-9804-CR-00125, 1999 WL 153773, at *4. In sum, the appellant is not guaranteed any form of release after serving thirty percent (30%) of his sentences.
III. Conclusion
Based upon the foregoing, we reverse the judgment of the trial court and remand for modification of the judgments consistent with this opinion.
I am unable to join with my colleagues in holding that a trial judge may not modify a misdemeanant's "program eligibility" percentage following revocation of the misdemeanant's suspended sentence. Our sentencing laws provide that "in imposing a misdemeanor sentence, the court shall fix a specific number of months, days or hours and the defendant shall be responsible for the entire sentence . . .," subject to various authorized sentencing credits. Tenn. Code Ann. § 40-35-302(b). The program eligibility percentage, as provided by subsection 302(d), has no bearing upon the misdemeanant's length of sentence or when the sentence expires; rather, as noted above, every non-suspended misdemeanor sentence is served at one hundred percent. Moreover, as observed by the majority, program eligibility percentage is distinguished from probation, which is authorized in subsection 302(e). Program eligibility, which is viewed under our sentencing law as a rehabilitative measure, relates only to placement in "rehabilitative programs" for service of the sentence as imposed. The fixing of a percentage for program eligibility, as with probation, must be determined at sentencing. Tenn. Code Ann. § 40-35-302(d).
The majority reasons that because our law requires reinstatement of the original judgment following revocation, the Appellant's original program eligibility of thirty percent must also be reinstated. I respectfully disagree. Again, program eligibility is unrelated to the sentence length, being expressly enacted as a rehabilitative measure, similar in purpose to probation. By analogy, the probationer whose suspended sentence is revoked is not entitled to reinstatement of the original judgment, i.e., probation. Similarly, a defendant serving a felony sentence of two years or less whose sentence is revoked is not eligible for release after reaching his original release eligibility date but, rather, must serve the entire sentence originally imposed. Tenn. Code Ann. § 40-35-501(a)(7). In sum, I find no provision in our sentencing law which requires that the trial court afford to a defendant, whose sentence is revoked, the same sentencing considerations as originally received.
The Appellant in this case appears to have violated virtually every imposed condition of probation. If the trial court at sentencing had expressed no eligibility percentage then, under the majority's holding, the Appellant would be immediately eligible for all available rehabilitative programs in the Johnson County Jail. I do not believe that it was the intent of our legislature in enacting Tenn. Code Ann. § 40-35-302(d) to provide rehabilitative program credits to probation violators who do not wish to be rehabilitated. The decision as to what percentage of a sentence must be served prior to being eligible for rehabilitative programs following a probation revocation should be left to the discretion of the trial court under the facts of the case.
For the reasons, I would affirm the judgment of the trial court.