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State v. Standridge9/30/2003
ded the appellant's sentences.
Shortly thereafter, a probation revocation hearing was held. The proof at the revocation hearing revealed that the appellant was arrested for driving under the influence (DUI) on November 5, 2001. At the conclusion of the hearing, the trial court found that the State had proven by a preponderance of the evidence that the appellant had violated the terms of his probation. The trial court stated, "I would order that you be taken into custody to serve your sentence. Now, I'll look to that again periodically. . . . That's the plan right now. If things go well, you might get out early." However, the revocation order reflects that the appellant must serve the "balance of his sentence of 274 Consecutive Days, day for day."
On appeal, the appellant raises the following issues for our review: (1) whether the evidence presented at trial was insufficient to convict the appellant of theft and resisting arrest; (2) whether "after a notice of appeal was filed the trial court was without authority to either place [the appellant] on probation or violate [the appellant's] probation"; (3) whether "the trial court erred by requiring [the appellant's] split confinement sentence to be served `day for day'"; and (4) whether "the trial court improperly instructed the jury concerning the definition of `intentionally' and `knowingly.'"
II. Analysis
A. Sentencing
Initially, we will address the revocation of the appellant's probation. The appellant contends that after he filed his notice of appeal, the trial court was without jurisdiction to place him on probation or to revoke his probation. In State v. Lyons, 29 S.W.3d 48, 50 (Tenn. Crim. App. 1999), this court concluded "that when a defendant convicted of a misdemeanor and sentenced to probation appeals his conviction to the appellate courts of this state, his sentence is automatically stayed pending the outcome of his appeal."
In the instant case, the appellant filed a notice of appeal on November 13, 2001. A probation violation warrant was issued by the trial court on December 19, 2001, whereupon the trial court revoked the appellant's probation because the appellant had been charged with a DUI on November 5, 2001. As we have previously observed, "the jurisdiction of this Court attaches upon the filing of the notice of appeal and the trial court therefore loses jurisdiction to revoke probation during the pendency of the appeal." State v. Nelson Keith Foster, No. E2002-00323-CCA-R3-CD, 2002 WL 31318650, at *1 (Tenn. Crim. App. at Knoxville, Oct. 15, 2002). Accordingly, the appellant is correct in arguing that the trial court was without jurisdiction to revoke his probation while his appeal was pending. However, this court has also cautioned that
he hands of a trial court . . . are not tied under these circumstances. Under Tennessee Code Annotated section 40-35-311(a) and the rule in [State v. Conner, 919 S.W.2d 48 (Tenn. Crim. App. 1995)], a trial court could appropriately consider a probation revocation warrant based on a criminal offense committed during appeal after the completion of the appeal and return of jurisdiction to the trial court.
State v. Patricia Adkisson, Nos. M2000-01079-CCA-R3-CD and M2000-02319-CCA-R3-CD, 2001 WL 1218570, at *10 (Tenn. Crim. App. at Nashville, Oct. 12, 2001).
B. Sufficiency of the Evidence
As we have noted, the appellant also challenges the sufficiency of the evidence supporting his convictions. On appeal, a jury conviction removes the presumption of the appellant's innocence and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court why the
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