State of Tennessee v. Sherri A. Bogle ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 10, 2012 Session
STATE OF TENNESSEE v. SHERRI A. BOGLE
Direct Appeal from the Circuit Court for Dyer County
No. C98-283 Lee Moore, Judge
No. W2011-01706-CCA-R3-CD - File July 27, 2012
Defendant, Sherri A. Bogle, appeals from the trial court’s order revoking Defendant’s
probation and requiring her to serve the sentence in incarceration. Defendant argues on
appeal that her sentence had expired before the State initiated revocation proceedings. After
a thorough review of the record and the briefs, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.
James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant Public Defender,
Dyersburg, Tennessee, for the appellant, Sherri A. Bogle.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Almost fourteen years ago, on October 20, 1998, Defendant pled guilty to Class D
felony theft and received a sentence of two years in the community corrections program for
Dyer County. A community corrections violation warrant was filed on December 11, 1998,
but Defendant absconded and was not found until 2008. On February 19, 2008, an order was
entered by the Dyer County Circuit Court. This order states that Defendant “now agrees to
a full revocation of said two (2) year sentence.” The February 19, 2008 order is captioned
“Consent Order for Furlough.” It reflects that Defendant was at that time incarcerated in the
Dyer County Jail, but had been accepted at “Transitions of Dyer County” (“Transitions”), a
“long-term facility for women.”
The order specifically provided that Defendant would be released fom the Dyer
County Jail at 9:00 a.m. on February 20, 2008, to go straight to Transitions, and would
immediately return to jail following her release from Transitions. As pertinent to this appeal,
the order had the following explicit provision: “Defendant shall receive jail credit during
[her] release only if she successfully completes the program at Transitions of Dyer County.”
Another order was entered in the case on November 25, 2008. In that order the trial
court recited that although Defendant “graduated” from the Transitions program on
November 16, 2008, she relapsed and violated her aftercare requirements and was returned
to the Transitions program on November 19, 2008. Further, the order specifically provided
that,
IT IS, THEREFORE, ORDERED that this defendant is to be
allowed to remain at Transitions of Dyer County pursuant to the original
Consent Order for Furlough entered in this cause on February 19, 2008 but
she is to receive no jail credit toward her sentence from February 20, 2008
through November 18, 2008.
On June 2, 2009, the trial court entered another order which, after reciting the history
of Defendant’s case through the November 25, 2008 order, set forth the following,
IT FURTHER APPEARING TO THE COURT that this
defendant has now been terminated from the [Transitions] program, without
successful completion of the program, and that she did return to the Dyer
County Jail on April 30, 2009.
IT IS, THEREFORE, ORDERED that this defendant is to receive no
jail credit toward her sentence from the time that she was absent from the
Dyer County Jail pursuant to the Consent Order for Furlough from February
20, 2008 through April 29, 2009.
On June 16, 2009, a probation certificate, regarding Defendant and her conviction in
this case, was filed in the Circuit Court Clerk’s office. It reflects that Defendant was being
placed upon “determinate release” probation on June 16, 2009, and that her two-year
sentence would expire November 3, 2010. Defendant and her probation officer signed the
certificate. This document is the only document in the record which places Defendant on the
specific release status of probation. Her initial release into the community was to community
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corrections in 1998, and this release status was revoked. For all other time periods since she
had pled guilty, she was either on community corrections, absconded while a community
corrections violation warrant was pending, in custody of the Dyer County Jail, or furloughed
from the county jail while a patient at Transitions.
The probation violation warrant which initiated the proceedings leading to this appeal
was filed on June 15, 2010. Defendant was not arrested on the warrant until February 11,
2011. She had moved to Memphis without obtaining prior permission of her probation
officer. Defendant later sent the officer a letter advising she had moved to Memphis, but she
did not provide her address. This was a violation of her probation. She was also arrested and
convicted for the offense of driving on a revoked license, third offense, which was
committed while she was on probation.
At the conclusion of the revocation hearing, the trial court made factual findings and
ruled that Defendant’s probation was revoked and as a result she was ordered to serve the
balance of her sentence in confinement. The trial court stated,
THE COURT: Defendant has violated Rule 6 in the terms of her
probation, in that she moved to Memphis. She did not
tell anyone where she was living. She did tell her
probation officer that she had moved, and the
circumstances that [Defendant] described was that she
moved to a domestic violence shelter but even after
she got out of that domestic violence shelter, within
three weeks, I think she said, maybe a little longer, she
still did not tell her probation officer where she was
living. Also, [Defendant] violated another rule, in that
she picked up a driving on a revoked driver’s license,
third offense, to which she pled guilty. So she has
violated the terms of her probation. Technical
violations or not, they’re still violations in terms of
probation. Now it goes to whether it should be a
complete revocation, or the two-year sentence should
be installed. And you go back and look at the facts of
the matter. She was on Community Corrections
probation. She got taken off because she didn’t
comply. She went to Transitions not once, but then
she went twice. And she was under the –
unfortunately she was on some drugs, and she got
placed back on probation, and then she violated the
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terms of her probation. I think the original case was
in 1998, and we find ourselves, 13 years later, still
dealing with what I guess was a two-year sentence.
13 years ago. I find that she has violated the terms of
her probation and - - complete revocation and the full
sentence is reinstated.
Defendant argues that her sentence had expired before the probation violation warrant
was filed on June 15, 2010. She bases this on the assertion that her two-year sentence was
reinstated on February 19, 2008, when her original community corrections sentence was
revoked. It is correct that another order in addition to the “Consent Order for Furlough” was
entered on February 19, 2008. This other order notes that Defendant acknowledged she had
violated her community corrections sentence by absconding. The order reflected that
Defendant had 148 days of jail credit as of February 19, 2008, and “revoked in full” the
community corrections sentence. As noted above, however, on that same date the trial court
granted Defendant a furlough from jail, in order to obtain treatment for her addiction
problems. She was not placed on probation. Neither was she receiving jail credits or
sentence credits during the time period that she was furloughed from serving her sentence
in jail.
Normally a defendant’s sentence will expire after she has completed service of the
sentence in custody or after the probationary period has expired without violation. State v.
Chapman, 977 S.W.2d 122, 125-26 (Tenn. Crim. App. 1997); State v. Watkins, 972 S.W.2d
703, 704 (Tenn. Crim. App. 1998). Defendant correctly argues that it is the filing of a
probation violation warrant, and not just a probation violation report, that tolls the running
of time during a period of probation. State v. Anthony, 109 S.W.3d 377, 381-82 (Tenn. Crim.
App. 2001). Defendant argues that since her two-year sentence was reinstated on February
19, 2008, with 148 days of jail credit, the violation warrant filed on June 15, 2010, was thus
long after her two-year sentence had expired. Defendant’s argument is misplaced. She was
furloughed from her sentence from February 20, 2008, through April 29, 2009. She was not
serving her sentence either by incarceration or by probation. Defendant acknowledged this
by signing the consent order for furlough on February 19, 2008 and by signing the probation
certificate on June 16, 2009, when she was finally, and for the first time, placed on probation.
If the trial court determines that a defendant “has violated the conditions of probation
and suspension by a preponderance of the evidence, the trial judge shall have the right . . .
to revoke the probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered, or otherwise in accordance with [Tennessee
Code Annotated] § 40-35-310.” Tenn. Code Ann. § 40-35-311(e). The revocation of
probation lies within the sound discretion of the trial court. Tenn. Code Ann. § 40-35-310;
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State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The appellate courts have a limited scope
of review. In order to show that a trial judge abused her discretion by revoking probation,
the defendant must show that the record lacks substantial evidence supporting the trial
judge’s conclusion that a probation violation occurred and that because of the violation,
probation should be revoked. See Harkins, 811 S.W.2d at 82.
There is no question that the State provided overwhelming proof that Defendant
violated rules of her probation by absconding and by committing the criminal offense of
driving on a revoked license, third offense. As to whether the sentence had expired prior to
June 15, 2010, when the probation violation warrant was filed, we conclude that it had not
expired. Tennessee Code Annotated section 40-35-316(a) provides in part that,
In any case in which a defendant has been sentenced to a local jail or
workhouse or is at a local jail or workhouse subject to the provisions of §
40-35-212, the sentencing court shall have jurisdiction to grant furlough for
any medical, penological, rehabilitative or humane reason, upon conditions
to be set by the sentencing court.
(emphasis added)
One of the conditions of Defendant’s furlough was that she had to successfully
complete the program at Transitions in order to receive jail time credits for her time spent at
the rehabilitative facility. Since she was never on probation while she was a patient at
Transitions, the only way the sentence could be “running” (for Defendant’s benefit) would
be if she was ultimately granted jail credits. She failed to obtain the jail credits. Defendant
did not appeal the orders which sanctified Defendant’s failure to receive jail credits, and they
have all become final orders.
The sentence of probation had not expired prior to when the probation violation
warrant was filed. Defendant is not entitled to relief in this appeal.
CONCLUSION
The judgment of the trial court is affirmed.
_________________________________________
THOMAS T. WOODALL, JUDGE
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