State of Tennessee v. Latasha Reid ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 7, 2011
STATE OF TENNESSEE v. LATASHA REID
Direct Appeal from the Circuit Court for Madison County
No. 02-510 Donald H. Allen, Judge
No. W2010-01428-CCA-R3-CD - Filed August 30, 2011
The appellant, Latasha Reid, pled guilty in the Madison County Circuit Court to nine counts
of identity theft and one count of felony theft. She received an effective four-year probation
sentence for the identity theft convictions and a two-year probation sentence for the felony
theft conviction, to be served consecutively, for a total effective sentence of six years.
Almost six years later, the trial court revoked the appellant’s probation and ordered her to
serve her entire sentence anew. On appeal, the appellant contends, and the State concedes,
that the trial court erred by ordering her to serve her effective six-year sentence anew because
part of the sentence had expired. Based upon the record and the parties’ briefs, we reverse
the trial court’s revocation of the appellant’s expired four-year probation sentence. The trial
court’s revocation of the appellant’s two-year probation sentence is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed
in Part and Reversed in Part.
N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R., and A LAN E. G LENN, JJ., joined.
Gregory D. Gookin, Jackson, Tennessee, for the appellant, Latasha Reid.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. Woodall, District Attorney General; and Shaun Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual Background
The record reflects that on September 7, 2004, the appellant pled guilty to nine counts
of identity theft, a Class D felony, and one count of theft of property valued one thousand
dollars or more but less than ten thousand dollars, a Class D felony. The trial court sentenced
her to four years for each identity theft conviction and ordered that the sentences be served
concurrently. The trial court sentenced her to two years for the theft conviction and ordered
that it be served consecutively to the effective four-year sentence for a total effective
sentence of six years. The trial court also ordered that the sentences be served on probation.
On April 19, 2010, the trial court issued a probation violation warrant, alleging that the
appellant violated her probation by being convicted on December 1, 2009, of criminal
impersonation, by failing to pay probation supervision fees, and by failing to pay restitution.
At the May 17, 2010 probation revocation hearing, the appellant acknowledged that
she was convicted in December 2009 of criminal impersonation and that she still owed
probation supervision fees. She also acknowledged that at the time the trial court issued the
probation violation warrant, she owed more than $15,000 in restitution. However, a few days
before the revocation hearing, the appellant’s family paid $15,000 toward her restitution,
leaving her with a balance of only $760. She said that “a bad decision” resulted in the
criminal impersonation charge, that she was a student at Jackson State, and that she missed
her final exams because she was in jail for the charge.
The trial court determined that the appellant violated her probation “in a substantial
way” by being convicted of criminal impersonation and by failing to pay supervision fees and
restitution. The trial court ordered that she serve sixty days of “shock incarceration” with
credit for time served. The trial court also said it was going to have a criminal records check
conducted on the appellant because “I want to make sure this is the only arrest that’s taken
place in the last six years.” The trial court scheduled another hearing for June 14, 2010.
At the June 14, 2010 hearing, the trial court announced that it had issued a second
probation violation warrant that morning on the basis that the appellant violated her probation
by being convicted on October 27, 2009, of unauthorized use of a handicap placard and by
being convicted on May 18, 2010, of passing worthless checks. Defense counsel informed
the court that the October 27, 2009 conviction for unauthorized use of a handicap placard and
the December 1, 2009 conviction for criminal impersonation had resulted from the same
incident. However, counsel acknowledged that the appellant pled guilty to both offenses.
Counsel also acknowledged that the appellant pled guilty on May 18, 2010, to passing one
worthless check.
The trial court ruled that the appellant violated her probation by being convicted of
unauthorized use of a handicap placard and by violating the bad check law. The trial court
revoked her probation, stating,
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Your probation is revoked. It will start all over again. You’ll
serve 180 days and once you’ve completed 180 days then you’ll
be released back onto probation. I’m going to give you another
chance to prove to me that you can make it on probation. You
can’t be violating the law anymore.
II. Analysis
The appellant contends that the trial court erred by ordering her to serve her six-year
sentence anew because her effective four-year sentence for the identity theft convictions
expired before the trial court issued the probation revocation warrants. The State concedes
that the appellant completed her four-year probation sentence and that the trial court could
not order her to serve that portion of her probation again. However, the State argues that
because the trial court could have extended the appellant’s remaining probationary term by
two years, this court should remand the case to the trial court in order for the trial court to
have that opportunity.
Generally, probation revocation rests in the sound discretion of the trial court and will
not be overturned by this court absent an abuse of that discretion. State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of discretion exists when “the record
contains no substantial evidence to support the trial court’s conclusion that a violation has
occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App. 1995).
Upon finding by a preponderance of the evidence that a defendant has violated the
terms of probation, the court can revoke the probation and reinstate the entire original
sentence. See Tenn. Code Ann. §§ 40-35-310, -311(e). In the alternative, “at the conclusion
of a probation revocation hearing, the court shall have the authority to extend the defendant’s
period of probation supervision for any period not in excess of two (2) years.” Tenn. Code
Ann. § 40-35-308(c); see also State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). The trial
court may either impose the original sentence or extend the probationary period by up to two
years, but it may not do both. Hunter, 1 S.W.3d at 647. Moreover, if a defendant
successfully completes a probationary sentence, the trial court has no authority to revoke
probation and order the service of the original sentence. Id. at 646. “When a defendant is
serving consecutive suspended sentences on probation, the trial court may only revoke those
suspended sentences that have not already been served in full.” State v. Raymond Kurt
Bryant, No. M2005-02467-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 740, at *6
(Nashville, Sept. 26, 2006); see State v. Anthony, 109 S.W.3d 377, 380 (Tenn. Crim, App.
2001).
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Turning to the instant case, the appellant began serving her effective four-year
sentence for the identity theft convictions in 2004. Therefore, it expired in 2008, and the trial
court could not revoke her four-year probation sentence. The trial court properly revoked the
appellant’s two-year probation sentence and ordered her to serve that sentence anew.
Because the trial court chose to impose the appellant’s original sentence, it could not
extend the probationary period by two years. In any event, we note that the appellant was not
released on bond pending this appeal and has already served her one-hundred-eighty-day
sentence. Given that the appellant ended up serving six months in jail on what should have
been a revocation for a two-year probation sentence, we decline the State’s request to remand
this case for further consideration by the trial court.
III. Conclusion
Based upon the record and the parties’ briefs, we reverse the trial court’s revocation
of the appellant’s expired four-year probation sentence. The trial court’s revocation of the
appellant’s two-year probation sentence is affirmed.
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NORMA McGEE OGLE, JUDGE
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