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State v. Holley10/25/2005
On May 22, 2000, the defendant entered pleas of guilty to four charges of possession of more than .5 grams of cocaine with intent to resell. Pursuant to a plea agreement with the state, the trial court imposed concurrent sentences of twelve years for each of the offenses. While in the Department of Correction, the defendant was placed in a boot camp program and, upon successful completion of that program, was released onto intensive probation. See Tenn. Code Ann. § 40-20-206 (" pon successful completion of a special alternative to incarceration program, an offender shall be released to the supervision of the division of community services for the department of correction under the terms and conditions imposed by the department for the balance of the original sentence imposed by the trial court. . . .").
On January 29, 2003, a probation violation warrant was filed, wherein it was alleged that the defendant had violated the terms of his release by failing to "obey the laws of the United States as well as any municipal ordinances." The warrant contained allegations that the defendant was arrested on the following charges: on May 5, 2002, for selling cocaine; on August 2, 2002, for assault, vandalism, and harassment; and on September 29, 2002, for driving on a suspended license.
At the probation violation hearing, John Ferrell, an officer of the Board of Probation and Parole, confirmed that the defendant had been charged with several counts of possession of a controlled substance with intent to sell and domestic violence assault. Ferrell testified that the defendant had failed to report the new arrests as required by the terms of his probation. He was unaware of a driving under the influence charge pending against the defendant. Ferrell confirmed that a capias had been issued when the defendant failed to appear for the initial setting of the revocation hearing. He also stated that the defendant had failed to report in person during the weeks prior to the revocation hearing.
During cross-examination, Ferrell conceded that the new charges against the defendant alleging the possession and/or sale of a controlled substance had been retired. He also acknowledged that the defendant had reported by telephone after the issuance of the capias. Ferrell agreed that the defendant had complied with all the other terms of his probation.
At the conclusion of the hearing, the trial court revoked the defendant's probation based upon his failure to appear at the initial setting of the revocation hearing:
This matter was set about two weeks ago. It was set on . . . May the 1st, for probation violation hearing, I told [the defendant's] lawyer that I was going to hear the matter. And [the defendant] and his lawyer both left and did not return. He is a forfeit in this Court. . . .
That's exactly why I am putting his sentence into effect. He forfeited his bond in this court.
One week later, the defendant filed a pro se notice of appeal in this court and approximately three months later, the defendant, represented by counsel, appeared in the trial court and conceded that he had violated the terms of his probation. The assistant district attorney announced that it had agreed to dismiss other pending charges in exchange for the defendant's concession. When informed by the court clerk that an appeal was pending on the probation revocation, the assistant district attorney stated as follows:
hat we anticipate doing, and I think to make everything clear, that even though we have had a probation violation hearing, the probation violation had been sustained. I think on the record he was going to concede the violation and put the senten
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