             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                  FILED
                          MAY 1996 SESSION
                                                           April 29, 1999

                                                        Cecil W. Crowson
STATE OF TENNESSEE,         )                          Appellate Court Clerk
                            )
             Appellee,      )    No. 01C01-9510-CC-00343
                            )
                            )    Rutherford County
v.                          )
                            )    Honorable Robert E. Corlew, III, Judge
                            )
SAM NEELY,                  )    (Reckless endangerment with a deadly
                            )    weapon and passing a worthless check)
             Appellant.     )


For the Appellant:               For the Appellee:

Nancy G. Wallace                 Charles W. Burson
6 Public Square North            Attorney General of Tennessee
Murfreesboro, TN 37130                  and
                                 Christina S. Shevalier
                                 Assistant Attorney General of Tennessee
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 William C. Whitesell, Jr.
                                 District Attorney General
                                         and
                                 John Price
                                 Assistant District Attorney General
                                 Judicial Building
                                 Murfreesboro, TN 37130




OPINION FILED:____________________


CONVICTIONS AFFIRMED; SENTENCES MODIFIED

Joseph M. Tipton
Judge
                                             OPINION



                The defendant, Sam Neely, appeals as of right from his convictions for

reckless endangerment with a deadly weapon and passing a worthless check in the

amount of $808.20, both Class E felonies. The convictions were the result of two

separate, unrelated jury trials in the Rutherford County Circuit Court. However, the

records from both cases were commingled below so as to reflect a single, consolidated

appeal. Therefore, we will address the defendant’s contentions with respect to each

conviction in this opinion. The defendant received concurrent one-year sentences for

both convictions as a Range I, standard offender and a $2,000.00 fine for the reckless

endangerment conviction.1 Regarding the reckless endangerment conviction, the

defendant contends that the evidence is insufficient. Regarding the worthless check

conviction, the defendant contends that the trial court erred by allowing him to be tried

on a dismissed indictment for a charge barred by the statute of limitations. In both

cases, the defendant argues that the trial court erred by denying him probation. We

affirm the convictions upon the jury verdicts but modify the sentence to reflect time

served with the remainder of the one-year sentence to be served on supervised

probation for each conviction, to be served concurrently.



                       I. RECKLESS ENDANGERMENT CONVICTION

                The defendant was originally charged with evading arrest and two counts

of reckless endangerment with an automobile as a deadly weapon. One count related

to the reckless endangerment of Rutherford County Deputy Whit Davis, and the other

count related to the reckless endangerment of Marvin Lester. The defendant was

acquitted of evading arrest and the reckless endangerment of Deputy Davis but was

convicted of the reckless endangerment of Mr. Lester.




                1
                  The record of the actual particulars of each sentence is quite confusing, but these
sentences will be reviewed later in this opinion.

                                                     2
              Deputy Davis testified that on April 21, 1993, he went to the defendant’s

home to serve a writ of execution upon the defendant’s Cadillac Seville in order to

satisfy a civil judgment against the defendant. After being told by an elderly woman that

the defendant was not home, he went around the corner of the house and saw the

defendant getting into the Cadillac. He said that he approached the car and told the

defendant to get out. He said that he opened the driver’s side door and tried to pull the

defendant out, but the defendant pushed him off and closed the door. Deputy Davis

testified that he threatened to shoot the defendant but did not pull his weapon. He said

that the defendant drove away before he could release the door handle.



              Murfreesboro Police Officer Tom Sissom testified that he received a

dispatch regarding the defendant. He said he saw the defendant driving at a high rate

of speed causing other cars to take evasive action. Officer Sissom stated that the

defendant was driving forty-five to fifty miles per hour in a thirty-mile-per-hour zone. He

said that the defendant “whipped up into a driveway” as a man was crossing it. Officer

Sissom arrested the defendant.



              Marvin Lester testified that he was in his yard when he heard a siren, and

then he saw a car coming into his driveway. He said that he had to run to get out of the

way or the car would have run over him. He said that the car came within ten feet of

him.



              The defendant testified that he was unaware that Deputy Davis was at his

house when he left. He said that as he was leaving, Davis ran up and threatened to

blow his brains out if he did not get out of the car. He said that Davis’ testimony was

incorrect. He said that his car doors automatically locked and that Davis would have

had to reach into the car to unlock the door. He said that Davis did not touch the car.




                                             3
The defendant testified that he felt threatened by Davis and drove away. He explained

that he did not think about Davis being a deputy; he only saw a gun.



              The defendant denied going the route described by Officer Sissom and

stated that he was going to visit some people. He said he saw Officer Sissom’s flashing

lights but did not think they were for him. He denied hearing a siren. He said that when

he realized that Officer Sissom was pursuing him, he pulled into a driveway. The

defendant testified that he was driving about twenty-five miles per hour, and he pulled

into the driveway at a slow speed. He claimed that Mr. Lester was in the yard about

seventy-five feet from the driveway. Also, he said that there were no skid marks on the

driveway. He said that he was unaware of any outstanding civil judgment against him.



              The defendant contends that the evidence is insufficient to prove beyond

a reasonable doubt that Mr. Lester was placed “in imminent danger of death or serious

bodily injury” as required by the reckless endangerment statute. Tenn. Code Ann. § 39-

13-103(a). He argues that the evidence fails to show that his car came close enough to

Mr. Lester to put him in imminent danger. The defendant asserts that Mr. Lester was

standing in the yard when the car pulled into the driveway. Also, he claims that he was

not violating any traffic laws. The state contends that the evidence is sufficient.



              Our standard of review when the sufficiency of the evidence is questioned

on appeal is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



                                             4
              Viewed in this light, we believe that the evidence is sufficient to support

the reckless endangerment conviction. Although the defendant claims that Mr. Lester

was seventy-five feet away from him and that he was traveling at a slow speed, the jury

obviously accredited the testimony of the state’s witnesses. Officer Sissom testified

that the defendant was traveling about fifteen to twenty miles per hour over the speed

limit when he “whipped up into” Mr. Lester’s driveway. Mr. Lester testified that if he had

not been looking, the defendant would have run over him, and he had to run to get out

of the way. He testified that the defendant’s car came within ten feet of him. In the light

most favorable to the state, the evidence is sufficient.



                         II. WORTHLESS CHECK CONVICTION

              The defendant contends that the trial court erred by allowing him to be

tried for the worthless check charge. He argues that the charge had been dismissed as

part of a plea agreement, but the trial court reinstated the charge when the defendant

withdrew his plea agreement. He contends that the proper procedure to reinstate the

charge would be to issue a new indictment. Because this procedure was not followed,

he argues that he could not properly be tried for the charge. He also contends that the

statute of limitations on the charge has now run. The state argues that a new

indictment was not required in order to reinstate the charge, and it further argues that

the statute of limitations has not yet run.



              The record reveals that the defendant was indicted for the worthless

check charge in July 1992. On December 28, 1992, the trial court dismissed the charge

without prejudice as part of a plea agreement. On March 22, 1993, the defendant filed

a motion to withdraw his guilty plea. The trial court granted the motion on May 6, 1993,

and set aside the dismissal of the worthless check charge, reinstating that charge.




                                              5
              The defendant now contends that the trial court did not properly reinstate

the charge and that a new indictment should have been issued, relying on State v.

D’Anna, 506 S.W.2d 200, 202 (Tenn. Crim. App. 1973). In that case, a panel of this

court determined that “[w]hen an unconditional order nolle prosequi is entered after

indictment, it is a dismissal of the indictment and no conviction can be had except by

beginning a new case against the accused.” Id. (citing State ex rel. Hobbs v. Murrell, 93

S.W.2d 628, 630 (Tenn. 1936)).



              The defendant argues that the reasoning in D’Anna applies to the present

case and that his conviction is improper because a new indictment was not issued. The

crucial difference between D’Anna and the present case, however, is that in D’Anna,

the order nolle prosequi was unconditional. In State ex rel. Hobbs, our supreme court

concluded that although an unconditional nolle prosequi would result in charges being

dismissed, “a nolle may be entered on a legal condition precedent, and, in such case, it

is not final or effective until the condition is performed[.]” 92 S.W.2d at 630. In the

present case, the trial court stated that, “Upon the entry of this plea and these

settlements, [the worthless check charge] is to be dismissed without prejudice and

without costs.” Thus, the dismissal of the worthless check charge was implicitly

conditioned upon the defendant honoring his plea agreement and was not effective or

final until this condition was performed. Because the condition failed, the plea

agreement was not binding, and the trial court properly reinstated the charge.



              The defendant next argues that the statute of limitations has run, thus the

state is precluded from reindicting him on the worthless check charge. The record

shows that the offense was committed on July 7, 1990, and a warrant was issued for

the defendant on April 10, 1992. At that time, the applicable two-year statute of

limitations was tolled, and approximately three months remained before the statute

expired. The charge was dismissed pursuant to a plea agreement on December 28,



                                             6
1992. The defendant moved to withdraw his guilty plea on March 22, 1993, and the

order granting the motion and reinstating the worthless check charge was filed on May

6, 1993.



              The issue of the subsequent status of charges dismissed pursuant to a

plea agreement in which the defendant pleads guilty to another charge has not been

addressed in Tennessee in the context of the statute of limitations and the defendant’s

attempt to withdraw his guilty plea. However, the case of State v. White, 838 S.W.2d

140 (Mo. Ct. App.), is on point. White pled guilty to three counts of rape, and two

remaining rape counts were dismissed pursuant to the plea agreement. Subsequently,

he successfully collaterally attacked the convictions. However, the court deemed the

collateral attack to be a breach of the plea agreement and set aside the dismissal of the

two rape counts. The defendant was tried and convicted on the five rape counts. On

appeal, he contended that the statute of limitations had run relative to the two

dismissed counts. The Missouri Court of Appeals stated the following:

              This court holds that under the case law tolling criminal
              statutes of limitations, and in fairness to both sides who enter
              a plea bargain agreement, the statute was tolled during
              White’s collateral review, and the parties are returned to pre-
              agreement status by his breach. Therefore the statute of
              limitations does not bar the State from prosecuting White on
              counts IV and V, originally dismissed under the plea
              agreement. To hold otherwise would allow a defendant to gain
              the benefits of a plea bargain, and then successfully attack it
              collaterally, without allowing the state to rescind its part of the
              bargain.

838 S.W.2d at 142.



              Applying the White analysis to the present case, we note that the

petitioner filed his motion to withdraw his guilty plea before the statute of limitations had

run. Such would be sufficient to allow reinstatement of the worthless check charge.

However, we also believe that the conditional status of the dismissal operates as a toll

of the statute of limitations. Otherwise, the defendant could successfully attack his



                                              7
agreed-upon conviction while the state could not rescind its part of the bargain. In any

event, the statute of limitations had not run on the worthless check offense.



                               III. DENIAL OF PROBATION

              The defendant contends that the trial court erred by denying him

probation in both the reckless endangerment and worthless check cases. He contends

that none of the justifications for denying probation exist in his case. See Tenn. Code

Ann. § 40-35-103. The state contends that the trial court found that the defendant had

seventy-two days of jail credit and ordered the defendant to begin serving probation

immediately. Thus, the state claims that the defendant did receive probation.



              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. Tenn. Code Ann. §§ 40-

35-401(d). As the Sentencing Commission Comments to this section note, the burden

is now on the defendant to show that the sentence is improper. This means that if the

trial court followed the statutory sentencing procedure, made findings of fact that are

adequately supported in the record, and gave due consideration and proper weight to

the factors and principles that are relevant to sentencing under the 1989 Sentencing

Act, we may not disturb the sentence even if a different result were preferred. State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, “the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances.”

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the


                                             8
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. § 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1995).


              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the

principles of sentencing and arguments as to sentencing alternatives, (4) the nature

and characteristics of the criminal conduct, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).



              The sentence to be imposed by the trial court for a Class E felony is

presumptively the minimum in the range when there are no enhancement or mitigating

factors present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to

increase the sentence within the range based upon the existence of enhancement

factors and then reduce the sentence as appropriate for any mitigating factors. Tenn.

Code Ann. § 40-35-210(d), (e). The weight to be afforded an existing factor is left to the

trial court's discretion so long as it complies with the purposes and principles of the

1989 Sentencing Act and its findings are adequately supported by the record. Tenn.

Code Ann. § 40-35-210, Sentencing Commission Comments; Moss, 727 S.W.2d at

237; see Ashby, 823 S.W.2d at 169.



              The record in this case with respect to the defendant’s sentence is

confusing at best. It reflects that the defendant was sentenced to one year as a Range

I, standard offender for each conviction and that the sentences were to be served

concurrently. Beyond that, it is difficult to determine what sentence the defendant

received. The judgment form reflects that the defendant was sentenced to one year of

confinement in the Department of Correction. However, on the same judgment form,


                                             9
the trial court handwrote that the defendant was to serve his sentence in the Rutherford

County Workhouse. The same judgment form also reflects that the defendant was

sentenced to one year of supervised probation. The effective date of the probation is

March 24, 1995, which is the same date on which the trial court imposed the sentence.



             The transcript of the sentencing hearing does not help clarify the record.

The following colloquy took place at the sentencing hearing:

             JUDGE: Respectfully, it does appear though to the Court that
             this is not a case where the Court should simply determine that
             Mr. Neely should simply be placed on probation. Respectfully,
             it appears and the Court recognizes that Mr. Neely has served
             a substantial period of the sentence. It appears though that he
             must proceed to serve the balance of that sentence.

                    It appears that upon his release, he must be placed on
             supervised probation, conditioned upon his good and lawful
             behavior, conditioned upon his payment of the fine which has
             previously been imposed by the jury.

             ....

             DEFENSE ATTORNEY: Were you asking him to be
             incarcerated or on supervised probation?

             JUDGE: I think he needs to serve the balance of the sentence.
             Now, if he’s standard range 1, 30 percent offender, the Court
             recognizes he’s served a substantial portion of that sentence.
             But it would be required -- and obviously may be commuted to
             the workhouse for the service of the balance of that. He must
             serve the balance of that sentence as a standard range 1, 30
             percent offender. And at the time he serves the balance of
             that, he’s entitled to suspension for the remainder of that
             period.

             DEFENSE ATTORNEY: I misunderstood you. I thought you
             said to serve the balance on supervised probation. So you’re
             saying he needs to serve the balance --

             JUDGE: Yes, ma’am.

             DEFENSE ATTORNEY: -- of the sentence.

             JUDGE: Yes, ma’am.

             DEFENSE ATTORNEY: See, I don’t think you can put them on
             supervised probation if he goes to serve the balance of his
             sentence. He would be released on parole.




                                    10
              PROSECUTOR: No. These are determinative released
              sentences. He comes out the expiration of 30 percent without
              the actual intervention of the parole board, and he can go on
              any form of supervision necessary.

              ....

              PROSECUTOR: . . . . We’ve concluded all proceedings . . .
              And it would seem appropriate that his period of supervised
              probation commenced today as opposed to some point in the
              future.

              ....

              JUDGE: All right. Very well. All right.


              After reviewing the record, we simply cannot determine the manner of

service in which the trial court ordered the defendant to serve his sentence.

Furthermore, if the trial court did deny probation, it failed to state on the record any

reason in support of the denial. For these reasons, we have conducted a de novo

review of the defendant’s sentence and have concluded that a sentence of probation is

warranted, taking into consideration the time that the defendant has already served.



              Pursuant to Tenn. Code Ann. § 40-35-102(6), the defendant is presumed

to be a favorable candidate for alternative sentencing options in the absence of

evidence to the contrary. This means that although the defendant is not automatically

entitled to probation, a rebuttable presumption exists that a sentence other than

incarceration would result in successful rehabilitation. Fletcher, 805 S.W.2d at 787;

Ashby, 823 S.W.2d at 168. The presumption can be rebutted upon a showing that:

              (A) Confinement is necessary to protect society by restraining
              a defendant who has a long history of criminal conduct;

              (B) Confinement is necessary to avoid depreciating the
              seriousness of the offense or confinement is particularly suited
              to provide an effective deterrence to others likely to commit
              similar offenses; or

              (C) Measures less restrictive than confinement have frequently
              or recently been applied unsuccessfully to the defendant[.]

Tenn. Code Ann. § 40-35-103(1).



                                      11
              Upon a review of the record, we conclude that the presumption in favor of

probation has not been rebutted. The record contains no evidence that the defendant

had a lengthy criminal history or that less restrictive measures were frequently or

recently applied unsuccessfully to the defendant. “‘The entire theory of probation is that

it is in the public interest that those who violate society’s rules of conduct should, in

proper cases, be given an opportunity to rehabilitate themselves . . . .’” Ashby, 823

S.W.2d at 160 (quoting Stiller v. State, 516 S.W.2d 617, 620 (Tenn. 1974)). Any

concern about the less-than-mitigating circumstances surrounding the offense reflecting

a particular need for deterrence or need for acknowledging the seriousness of the

offense is more than fully met by the time the defendant has already served. Based

upon the record before us, we conclude that his concurrent one-year sentences shall

be suspended upon time previously served, and the remainder of the time shall be

served on probation.



              In consideration of the foregoing and the record as a whole, we affirm the

defendant’s convictions upon the jury verdicts for felony reckless endangerment and

passing a worthless check. We modify the defendant’s sentences to reflect for each

offense a sentence of one year, with time served of seventy-two days and the

remainder of the year to be served on supervised probation. The sentences shall be

served concurrently.



                                                          __________________________
                                                          Joseph M. Tipton, Judge




                                      12
CONCUR:



___________________________
Gary R. Wade, Presiding Judge



___________________________
William M. Barker, Special Judge




                                   13
