State of Tennessee v. Sandra Brown

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 14, 2001 Session

STATE OF TENNESSEE v. SANDRA BROWN

Direct Appeal from the Criminal Court for White County

No. CR560 Lillie Ann Sells, Judge

No. M2000-00792-CCA-R3-CD - Filed September 19, 2001

The defendant appeals the judgment of the trial court revoking her probation. She raises two issues:

(1) whether the evidence supported the trial court’s finding that she violated the terms of her

probation by committing the offense of accessory after the fact; and (2) whether the trial court had

the authority to order her to continue her supervised probation pending this appeal. After a thorough

review of the record, we find both issues have merit; therefore, we reverse the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;

Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES

CURWOOD WITT, JR., JJ., joined.

John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Sandra Brown.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

William Edward Gibson, District Attorney General; and William M. Locke, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant pled guilty to attempted accessory after the fact, a Class A misdemeanor, on

September 3, 1999, in the General Sessions Court of White County after an officer observed her

driving a vehicle with her husband, George Brown, an escaped felon, as a passenger. She was

sentenced to 11 months and 29 days, all suspended except for 40 days in confinement, with the

remainder of the sentence to be served on supervised probation. The general sessions court issued

an order enumerating the terms of the defendant’s probation as numbered rules, with Rule 1 being:

[The defendant] will not violate any law; the violation of the law shall be construed

a violation of probation. Any new violations are to be reported to the probation officer

within 72 hours. New law violations may result in a violation warrant being issued.

In October 1999, after George Brown had again escaped from jail, sheriff’s department

officers had a conversation with the defendant in which they questioned her regarding her husband’s

location, advised her that he had again escaped from jail, and instructed her to “bring him in.”

On December 24, 1999, the sheriff’s department received information that George Brown

was at his mother’s trailer. Officers entered the trailer and found George Brown and the defendant

in a bed. Corporal Chris Luna of the White County Sheriff’s Department charged the defendant with

being an accessory after the fact. Probation officer Joel Colton executed an affidavit alleging the

defendant had violated Rule 1 of the terms of her probation by committing accessory after the fact

on December 24, 1999. The general sessions court issued a probation violation warrant based on

Colton’s affidavit. On February 4, 2000, the general sessions court conducted a combined

preliminary hearing and probation violation hearing. It dismissed Corporal Luna’s warrant for lack

of probable cause, yet revoked the defendant’s probation. The defendant then filed a timely appeal

of her probation revocation to the White County Criminal Court.

On March 30, 2000, the criminal court conducted a de novo probation violation hearing. See

State v. Cunningham, 972 S.W.2d 16, 18 (Tenn. Crim. App. 1998). Joel Colton testified that the

December 24, 1999, charge for accessory after the fact was the sole basis for the probation violation

warrant. Corporal Luna testified that on December 24, 1999, the defendant and her husband were

in bed together in her mother-in-law’s trailer. The criminal court judge found by a preponderance

of the evidence that the defendant had violated her probation and revoked probation.1 The trial court

allowed the defendant to remain on bond and also ordered the defendant to remain on supervised

probation pending her appeal to this court. The revocation order was not entered until November

14, 2000.2

1

The trial court initially stated it found “p robable cause” that the defendan t had violated her prob ation. The

court later changed its finding, stating it found by a “preponderance of the evidence” that the defendant had violated her

probatio n. A “prob able cause ” finding is insufficient to justify a revoca tion. See Tenn. C ode Ann . § 40-35 -311(d) .

2

Between March 30, 2000, and November 14, 200 0, the genera l sessions cou rt issued ano ther violation w arrant,

as did the criminal court. On November 20, 2000, the criminal court issued yet another vio lation warran t. All of these

warrants were for reasons unrelated to the present appeal. W e are unaware of the outco me of these warrants.

Subsequ ently in this opinion we conclude the trial court erred in requiring a continuation of supervised probation during

appeal, but also con clude the trial co urt has author ity to conduc t a revocation of probation proceeding based on violations

of law committed during the time the defendant was released on bail during the ap peal. See State v. Stone, 880 S.W.2d

746, 74 8 (Tenn . Crim. App . 1994).

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I. PROBATION VIOLATION FOR OFFENSE OF ACCESSORY AFTER THE FACT

The defendant contends the trial court erred in finding the defendant had violated her

probation by committing the offense of accessory after the fact. A trial court may revoke probation

and order the imposition of the original sentence upon finding by a “preponderance of the evidence”

that the person has violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, -311(d). The

decision to revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810

S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation is subject to an abuse of

discretion standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991). Discretion is abused only if the record contains no substantial evidence to support the

conclusion of the trial court that a violation of probation has occurred. Id.; State v. Gregory, 946

S.W.2d 829, 832 (Tenn. Crim. App. 1997).

In the case sub judice, the probation violation warrant alleged only one violation, that the

defendant committed accessory after the fact on December 24, 1999. The proof at the violation

hearing before the criminal court established that officers found the defendant in bed with her

husband, a felony escapee, in a home owned by her husband’s mother. The offense of accessory after

the fact is defined as:

A person is an accessory after the fact who, after the commission of a felony, with

knowledge or reasonable ground to believe that the offender has committed the

felony, and with the intent to hinder the arrest, trial, conviction or punishment of the

offender:

(1) Harbors or conceals the offender;

(2) Provides or aids in providing the offender with any means of avoiding arrest, trial,

conviction or punishment; or

(3) Warns the offender of impending apprehension or discovery.

Tenn. Code Ann. § 39-11-411(a).

After carefully reviewing the record, we can find no substantial evidence establishing by a

preponderance of the evidence that the defendant’s presence with her escaped husband in his mother’s

home made her an accessory after the fact as defined by the statute.3 Since this was the sole basis for

revoking probation, we conclude the trial court erred in revoking the defendant’s probation.

3

It may also be that the present statute, Tenn. Code Ann. § 39-11-411 (1997), like the former statute, Tenn.

Code Ann. § 39-1-30 6 (1982), also requires that the principal be convicted prior to the trial of the accessory after the

fact. See State v. Hodgkinson, 778 S.W.2d 54 , 63 (Tenn. Crim. App. 1989) (holding that under Tenn. Code Ann. § 39-1-

306 (1982) the principal must first be tried and convicted before accessory after the fact can be established). The

conviction of Georg e Brown for escape was not estab lished at the hea ring.

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II. COURT’S AUTHORITY PENDING APPEAL

Further, the defendant argues the trial court erred in ordering the defendant to continue her

supervised probation while she appealed the judgment of the trial court revoking her probation. The

state, in its brief, concedes that the trial court acted improperly in this respect. We agree, but for a

different reason than that advanced by the defendant and the state.

In State v. Lyons, a case cited by both parties, this court held that when a defendant is

convicted of a misdemeanor and sentenced to probation, the sentence is stayed pending the outcome

of the appeal. 29 S.W.3d 48, 50 (Tenn. Crim. App. 1999). However, this statement in Lyons related

to a direct appeal of the sentence and not an appeal of a revocation order. More specifically, we held

in Lyons the revocation warrant was issued prior to the expiration of probation since probation had

been automatically stayed during the previous direct appeal of the sentence. Id.

Here, the issue is whether the trial court can require a defendant to remain on supervised

probation during the appeal of an order of revocation. The trial court has authority to release a

defendant on bail pending appellate review of a revocation of probation. Tenn. R. Crim. P. 32(g).

The trial court can set reasonable conditions of bail, including placing the defendant “under the

supervision of an available probation counselor or other appropriate public official.” Tenn. Code

Ann. § 40-11-116(b)(2). If a defendant violates a condition of bail, bail can be revoked. In addition,

the trial court retains the authority to revoke probation based upon commission of a new offense

during a defendant’s release on bail pending appeal, even prior to the beginning of the probationary

term. State v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994).

In this case, however, the trial court both allowed the defendant to remain on bail pending

appeal and required her to “remain on supervised probation.” Although the trial court has authority

under Stone to conduct a revocation of probation hearing based upon new violations of law during

the appeal, the trial court does not have authority to require the defendant to remain on supervised

probation during the appeal unless reporting to a probation officer is a condition of bail. Our review

of the transcript and order does not reflect that supervised probation was a condition of bail. Thus,

the trial court erred in ordering a continuation of supervised probation during the appeal.

CONCLUSION

Accordingly, we reverse the judgment of the court below. The state did not establish a

violation of probation, and the trial court erroneously ordered a continuation of supervised probation

during appeal. Nevertheless, upon remand the trial court will give the defendant credit toward

probation for all times during which the defendant was in compliance with the conditions of

probation.

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_____________________________________

JOE G. RILEY, JUDGE

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