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State v. Friedman9/24/2001
to defense counsel. The trial judge then remarked, "If you had prepared the order in . . . December '98, or January of '99, then [the defendant] would already be off probation."
On August 16 and 18, 2000, upon the oath of the probation officer, the trial court issued probation violation warrants. They included allegations that the defendant had committed an assault in Sullivan County in October of 1999 and that he had failed to report his arrest and conviction. At the revocation hearing scheduled for October 2, 2000, the district attorney general withdrew from the prosecution because the defendant was being utilized as a prosecution witness in a bribery case. An assistant district attorney pro tem represented the state in a hearing which ensued some 16 days later. At that proceeding, the assistant district attorney pro tem expressed the view that the jurisdiction of the court had ended because the probation violation warrant had not been issued within 11 months and 29 days from the date of the defendant's incarceration. The trial court disagreed and ordered the defendant to serve the sentence less his prior jail credits.
Tennessee Code Annotated § 40-23-101(a) provides as follows:
When a person is sentenced to imprisonment, the judgment of the court shall be rendered so that such sentence shall commence on the day on which the defendant legally comes into the custody of the sheriff for execution of the judgment of imprisonment.
In State v. Watkins, 972 S.W.2d 703 (Tenn. Crim. App. 1998), this court ruled that a probationary term can extend only so long as the sentence of 11 months and 29 days. Similarly, in State v. Vito Summa, No. 02C01-9411-CR-00254, slip op. at 5 (Tenn. Crim. App., at Jackson, Dec. 28, 1995), perm. to appeal denied, (Tenn. 1996), this court ruled that after a period of "actual incarceration" on an 11-month-29-day sentence, the trial judge could not sentence the defendant to a probationary term longer than six months and 22 days, the balance of the term after deducting jail credits. The portion of the order extending the probationary period beyond 11 months and 29 days was declared void. In State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999), our supreme court observed that when a defendant successfully completes a probationary sentence, the trial court is without authority to revoke the probation and order service of the original sentence. See also Tenn. Code Ann. § 40-35-310.
The state attorney general concedes and this court must conclude that the trial court had no authority to enter the order on June 12, 2000, placing the defendant on an additional seven months 29 days probation. In consequence, there was no basis for the issuance of the revocation warrants. The term of probation in this case ended on January 3, 2000, which is 11 months and 29 days from the date that the defendant was placed in custody. See Wilson v. State, 882 S.W.2d 361, 364 (Tenn. Crim. App. 1994).
Accordingly, the judgment must be reversed and the cause dismissed.
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