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State v. Tolle

Court of Criminal Appeals of Tennessee, Knoxville

March 19, 2018

STATE OF TENNESSE
v.
MICHAEL EUGENE TOLLE

          Session December 19, 2017

         Appeal from the Criminal Court for Knox County No. 100047 Bob McGee, Judge

         In this appeal, the State challenges the trial court's decision to apply the amended version of Code section 39-14-105, which provides the grading of theft offenses, to modify the class of the defendant's conviction offense and the corresponding sentence following the revocation of the defendant's probation. No appeal right lies for the State pursuant to either Tennessee Rule of Appellate Procedure 3, Code section 40-35-402, or Tennessee Rule of Criminal Procedure 35 under the circumstances in this case. Because we have concluded that the trial court exceeded its authority by the application of the amended version of Code section 39-14-105, however, we have elected to treat the improperly-filed appeal as a petition for the common law writ of certiorari. Accordingly, we vacate the order of the trial court and remand the case for proceedings consistent with this opinion.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, Assistant District Attorney General, for the appellant, State of Tennessee.

          Mark Stephens, District Public Defender; and Jonathan Hartwell (on appeal) and Christy Murray (at hearing), Assistant District Public Defenders, for the appellee, Michael Eugene Tolle.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         On August 8, 2012, the defendant pleaded guilty to one count of theft of property valued at more than $500 but less than $1, 000 and one count of theft of property valued at $500 or less. In keeping with the defendant's plea agreement with the State, the trial court imposed concurrent sentences of two years and 11 months and 29 days, respectively, to be served in the Tennessee Department of Correction ("TDOC"). The trial court also applied 61 days' pretrial jail credit.[1] On December 22, 2012, TDOC placed the defendant on determinate release, see T.C.A. § 40-35-501(a)(3) (2006) ("Notwithstanding any other provision of law, inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their release eligibility date."), with a probation expiration date of May 9, 2014.[2]

         A probation violation warrant issued on June 7, 2013, alleging that the defendant had violated the terms of his release by failing to inform his probation officer before changing his address, failing to allow a home visit by his probation officer, failing to report as required, and failing to pay probation supervision fees in an amount of $225. According to the defendant, he was taken into custody by the South Carolina Department of Corrections ("SCDC") on May 7, 2014, and remained in SCDC custody until December 23, 2016, when he returned to Jefferson County, Tennessee, pursuant to a detainer warrant to answer charges of burglary and theft, both Class D felonies. The defendant pleaded guilty to the Jefferson County charges in exchange for a three-year sentence, and the Jefferson County Criminal Court granted the defendant credit for the time he served in SCDC.

         Following the entry of his pleas in Jefferson County, the defendant was transferred to Knox County to answer the violation warrant in this case. The defendant moved to dismiss the warrant arguing that the State's failure to prosecute the warrant while he was incarcerated in SCDC violated his right to a speedy trial and deprived him of the opportunity to earn credit against the sentence in this case while serving his SCDC sentence. The defendant also asked that, because the legislature amended Code section 39-14-105, the theft grading statute, effective January 1, 2017, the trial court should reduce the conviction class of his conviction of theft of property valued at more than $500 but less than $1, 000 from a Class E felony to a Class A misdemeanor as provided by amended Code section 39-14-105. The defendant argued that the terms of Code section 39-11-112 entitled him to the more lenient penalty provided by the amendment.

         The defendant also asked the trial court to grant him credit for the time he was incarcerated in SCDC.

         The State opposed the defendant's motion, arguing that no speedy trial violation had occurred and that the defendant was entitled to neither the more lenient sentence provided by amended Code section 39-14-105 nor credit for the time he spent incarcerated in SCDC.

         At the February 23, 2017 revocation hearing, the defendant acknowledged that he violated the terms of his probationary sentence but argued that the warrant should be dismissed because the State failed to timely prosecute in violation of his constitutional right to a speedy trial. The defendant also argued that, should the trial court deny the motion to dismiss, he should be "resentence[d] . . . consistent with the change in law with theft offenses." The defendant asserted that the trial court had the authority to resentence the defendant under the terms of Tennessee Rule of Criminal Procedure 35 "which allows the reduction of a sentence . . . within 120 days after . . . probation is revoked which is what we have here." Arguing that Code section 39-11-112, the criminal savings statute, entitled him to the more lenient sentence, the defendant asked that his conviction offense of theft of property valued at more than $500 but less than $1, 000 be reclassified as a Class A misdemeanor consistent with amended Code section 39-14-105.

         The State argued that no speedy trial violation had occurred because it was the defendant's action in acquiring criminal convictions in another state that caused the delay in this case. The State asserted that the defendant was not entitled to resentencing consistent with the new theft grading statute because Code section 39-11-112 had no application following a probation revocation.

         The trial court rejected the defendant's speedy trial claim on grounds that "there cannot be a violation of speedy trial right because there's no trial pending." The trial court also found that the State of Tennessee was under no obligation "to leap into action simply because [the defendant] commits crimes in other states and picks up other sentences." The trial court found that the defendant violated the terms of his probation "by picking up the crimes in another state and by being convicted and serving his sentence."[3] The court denied the defendant's request for credit for time served in SCDC toward the sentence in this case. With regard to the defendant's request for a sentence reduction, the trial court found:

The Court is under no obligation to resentence him and would be well within its rights to simply impose the original sentence [of] two years and remand him. However, it is true that our legislature has in more recent times decided that the proper penalty for this offense would be 11 months, 29 days.
So in the spirit of complying with the wishes of the legislature, the contemporary . . . legislature, this Court will resentence him to 11 months and 29 days in the custody of the Knox County Sheriff's Department and a service rate of 75 percent. The Court orders that he receive credit for the time he served in the Tennessee jail, Knox County jails on these offenses.

         The trial court reiterated its holdings in a written order. [4]

         The State appealed "pursuant to Tenn. Code Ann. § 40-35-402" the trial court's decision to resentence the defendant under the amended version of Code section 39-14-105. The defendant did not appeal.

         I. Jurisdiction

         As in any other appeal before this court, our first concern is whether this court is authorized to hear the case. The State initiated the appeal in this case by filing a notice of appeal "pursuant to Code section 40-35-402." That statute provides the State the right to appeal certain sentencing decisions of the trial court "within the same time and in the same manner as other appeals in criminal cases":

(a) The district attorney general in a criminal case may appeal from the length, range or manner of the service of the sentence imposed by the sentencing court. The district attorney general may also appeal the imposition of concurrent sentences. In addition, the district attorney general may also appeal the amount of fines and restitution imposed by the sentencing court. An appeal pursuant to this section shall be taken within the same time and in the same manner as other appeals in criminal cases. The right of the appeal of the state is independent of the defendant's right of appeal.
(b) An appeal from a sentence is limited to one (1) or more of the following conditions:
(1) The court improperly sentenced the defendant to the wrong sentence range;
(2)The court granted all or part of the sentence on probation;
(3) The court ordered all or part of the sentences to run concurrently;
(4) The court improperly found the defendant to be an especially ...

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