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State v. Hunter9/7/1999
AFFIRMED
We granted this appeal by Jeffrey D. Hunter, the appellant, in order to address issues pertinent to a trial court's authority during probation revocation proceedings. For the reasons provided herein, we hold that when a trial court has determined that a probation violation has occurred, it possesses the authority to: (1) order incarceration; (2) order the original probationary period to commence anew; or (3) extend the remaining period of probation for as much as an additional two years. We further conclude that a defendant is not entitled to credit on his or her sentence of incarceration for any time served on probation prior to probation revocation and reinstatement of the original sentence. The judgment of the Court of Criminal Appeals is affirmed.
BACKGROUND
On September 3, 1991, the appellant pled guilty to reckless driving, failure to appear, and two counts of possession of marijuana with the intent to sell. A sentencing hearing was held on November 13, 1991, at which time the trial court imposed consecutive two-year sentences for each marijuana conviction and then immediately granted consecutive two-year probationary periods for each conviction. The trial court also ordered the appellant to serve a consecutive one-year probationary sentence for the failure to appear conviction and a concurrent six-month probationary sentence for the reckless driving conviction. Thus, the total effective sentence for all four convictions was five (5) years to be served on probation.
Approximately one week later, on November 21, 1991, a probation violation warrant was issued against the appellant charging him with marijuana use. Following a hearing on January 13, 1992, the appellant's probation was revoked but then reinstated.
Less than two years later, on February 18, 1993, a second probation violation warrant was issued against the appellant based on charges filed against him for aggravated assault. The appellant subsequently pled guilty to aggravated assault and received a suspended eight-year sentence to be served consecutively to his previous five-year sentence. Again, the trial court revoked the appellant's previous probation and then immediately reinstated the original probationary sentences. The trial court also ordered the appellant incarcerated for seventy-five (75) days before being placed back on probation. The appellant's total effective sentence was, therefore, increased to thirteen (13) years.
A third probation violation warrant was issued against the appellant on June 21, 1994, based on allegations of marijuana use and his arrest for driving under the influence . As a result, on December 15, 1994, the trial court again revoked the appellant's probation and reinstated his original probation sentences. However, the trial court ordered him to serve ninety (90) days in jail before placing him back on probation.
On April 1, 1996, a final probation violation warrant was issued against the appellant. The warrant was based upon the appellant's use of alcohol, which was specifically prohibited by the probationary rules, and his erratic behavior and threats made to his family. Following yet another probation revocation hearing, on May 30, 1996, the trial court again revoked the appellant's probation on all of his sentences and ordered him to serve the following consecutive sentences: two (2) years for the first drug conviction, two (2) years for the second drug conviction, one (1) year for the failure to appear conviction, and eight (8) years for the aggravated assault conviction. Therefore, the total effective sentence was thirteen (13) years to be served in the Department of Correction.
On June 1
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