Kimberly Street v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
July 29, 1998
Cecil W. Crowson
Appellate Court Clerk
KIMBERLY SUTTON STREET, )
) NO. 01C01-9707-CC-00250
Appellant, )
) RUTHERFORD COUNTY
VS. )
) HON. J.S. DANIEL,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES R. RAY JOHN KNOX WALKUP
211 Third Avenue North Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288 ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM C. WHITESELL, JR.
District Attorney General
303 Rutherford Co. Judicial Bldg.
Murfreesboro, TN 37130
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The petitioner, Kimberly Sutton Street, appeals the denial of her petition
for post-conviction relief by the Circuit Court of Rutherford County. The
petitioner contends that the trial court did not have jurisdiction to alter the
conditions of her appeal bond; therefore, the alteration resulted in “punishment.”
She contends that serving the original sentence imposed by the trial court would
violate her constitutional right against double jeopardy. The judgment of the trial
court is AFFIRMED.
I.
The petitioner was convicted by a jury in Rutherford County of possession
of marijuana, possession of valium, possession of drug paraphernalia, and
driving under the influence, second offense. She was sentenced to concurrent
terms of eleven (11) months and twenty-nine (29) days. The sentences were to
be served on supervised probation after ninety (90) days served in confinement.
The petitioner filed a motion for new trial, which was denied. The
petitioner remained on bond while she appealed to this Court. While the appeal
of petitioner’s convictions was pending, she was indicted in Sumner County for
various drug offenses. The District Attorney General of Rutherford County on
May 2, 1996, filed a motion to revoke the petitioner’s bond. A hearing was held
on May 21, 1996, and the trial court issued an order amending the conditions of
the petitioner’s release. The petitioner’s bond was raised $4,000. She was also
“placed on supervised probation,” required to remain free of illicit drugs, ordered
to submit to drug screenings, and had to comply with a 7:00 p.m. curfew. The
petitioner also alleges the “Draconian” measure of placing an electronic
monitoring device around her ankle was foisted upon her.
2
This Court subsequently affirmed the petitioner’s convictions. State v.
Kimberly Sutton Street, C.C.A. No. 01C01-9508-CC-00257, Rutherford County
(Tenn. Crim. App. filed September 19, 1996, at Nashville). The Tennessee
Supreme Court denied permission to appeal in an order filed March 3, 1997.
The petitioner subsequently filed a petition for post-conviction relief
alleging, inter alia, that the increased conditions of her bond constituted
punishment for double jeopardy purposes; therefore, she had already served her
sentence. The trial court dismissed the petition without a hearing, and the
petitioner appealed.
II.
The defendant alleges that the trial court’s modification of her bond was
made without jurisdiction and constituted punishment, causing her to “more than
serve the original sentence imposed by the trial court.” We respectfully disagree.
A.
A defendant may be admitted to bail pending appeal by the trial court
where the judgment was rendered, by this Court, or by the Tennessee Supreme
Court. Tenn. Code Ann. § 40-11-113(a)(1). Any of the above courts, judges or
justices thereof, may increase or reduce the amount of bail required pending
appellate review. Tenn. Code Ann. § 40-11-113(a)(3). If a court finds it
necessary, a defendant as a condition of release on bail may be required to
submit to supervised probation and have reasonable restrictions placed upon
her activities, movements, associations and residences. Tenn. Code Ann. § 40-
3
11-116(b)(2), (3).1
Thus, the petitioner’s contention that a trial court does not have
jurisdiction to alter or modify bail after notice of appeal is without merit. Indeed,
an application for alteration of bail is one of the few instances where both the trial
and appellate courts retain concurrent jurisdiction. Raybin, Tennessee Criminal
Practice and Procedure, § 33.104 (1985); see also Tenn. R. App. P. 8(a).
B.
We also reject the petitioner’s argument that the alteration of bail
constituted punishment for double jeopardy purposes. To be put in jeopardy, a
defendant must be “subject to ‘criminal prosecution’ and put to trial.” United
States v. Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). A bail revocation hearing
serves a regulatory function rather than a criminal function. State v. Pennington,
952 S.W.2d 420, 422 (Tenn. 1997)(citing United States v. Grisanti, supra).Regulatory or remedial purposes do not implicate double jeopardy. Id. at 422-
23.
C.
The actions of the trial court altering conditions of the defendant’s release
were appealable to this Court in accordance with Tenn. R. App. P. 8(a). See
Tenn. Code Ann. § 40-11-144. The appropriateness of the modification could
have been reviewed at that time. The petitioner failed to avail herself of this
opportunity.
1
If a person admitted to bail on appeal is indicted for or convicted of a
felony while on bail, the bail “shall be revoked.” Tenn. Code Ann. § 40-11-
113(a)(4)(emphasis added). It appears the petitioner was extended mercy by the
trial court since the statute mandates revocation.
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For the above reasons, the judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
__________________________
CURWOOD WITT, JUDGE
__________________________
LEE MOORE, SPECIAL JUDGE
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