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State v. Adkisson10/12/2001
gues that the trial court erred by revoking her probation because her sentence was automatically stayed pending the outcome of her appeal. See State v. Lyons, 29 S.W.3d 48 (Tenn. Crim. App. 2000). Citing State v. Conner, 919 S.W.2d 48 (Tenn. Crim. App. 1995), the state responds that a trial court always retains jurisdiction over a probationer, even when the sentence is not in effect.
The jurisdiction of this court "attaches upon the filing of the notice of appeal and, therefore, the trial court loses jurisdiction." State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); see also State v. Peak, 823 S.W.2d 228, 229 (Tenn. Crim. App. 1991). Although the defendant filed her notice of appeal nearly two months late, this court granted the defendant's motion to waive timely filing on May 24, 2000, concluding that the notice was considered timely filed as of May 8. At that time, almost two months before the filing of the probation revocation warrant on July 8, 2000, the trial court lost jurisdiction.
In our view, State v. Conner is distinguishable from this case. In Conner, the defendant pled guilty to driving under the influence , fourth offense, and driving on a revoked license. He received an effective sentence of 11 months, 29 days, with all but 150 days suspended. The sentence was ordered to be served consecutively to a prior felony sentence. Later, the district attorney general filed a petition to revoke probation, asserting that the defendant had failed to return from a furlough and had also received another driving under the influence conviction. The defendant argued, among other things, that the trial court was without authority to revoke his probation because his sentence had not actually commenced. This court disagreed, holding that a trial court may revoke a term of probation based on acts committed after sentencing, but before the commencement of a probationary term. Id. at 51. There is one critical procedural difference between Conner and this case: At the time of the revocation petition in Conner, no notice of appeal had been filed and the judgment had become final. Here, of course, a notice of appeal had been filed and the trial court's jurisdiction had ended prior to the July 8 probation revocation warrant.
Our conclusion does not turn on the fact that the sentence of the defendant was stayed pending her appeal. Rather, it is a matter of jurisdiction. The state argues that such a holding will give probationers "carte blanche to violate the law during a period when the sentence is not in effect." The hands of a trial court, however, are not tied under these circumstances. Under Tennessee Code Annotated section 40-35-311(a) and the rule in Conner, a trial court could appropriately consider a probation revocation warrant based on a criminal offense committed during appeal after completion of the appeal and return of jurisdiction to the trial court.
Because the evidence resulting from the initial search of the defendant's property should have been suppressed, the convictions are reversed and the cause remanded to the trial court.
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