         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 25, 2003

      STATE OF TENNESSEE v. KENNETH MICHAEL BYRD, ALIAS

                   Direct Appeal from the Criminal Court for Knox County
                             No. 68167    Ray L. Jenkins, Judge



                                  No. E2002-01589-CCA-R3-CD
                                          May 9, 2003

Issue: Whether the issuance of a capias tolls the expiration of a probationary sentence. Upon this
record, we conclude it does not. We reverse the revocation of the defendant’s probation, concluding
his probationary sentence had expired.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR. and ROBERT W. WEDEMEYER , JJ., joined.

Mark E. Stephens, District Public Defender, and Robert C. Edwards and John R. Halstead, Assistant
Public Defenders, for the appellant, Kenneth Michael Byrd, Alias.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The defendant, Kenneth Michael Byrd, pled guilty on June 21, 2000, to reckless driving, in
violation of Tennessee Code Annotated section 50-10-205. He was sentenced to six months, with
all except 48 hours on probation. His probation was to expire on December 21, 2000. On October
6, 2000, the trial court issued a capias for the defendant’s arrest and placed the case in the inactive
file. The defendant was arrested on the capias on May 5, 2002. On May 7, 2002, a pleading entitled
“Violation of Probation” was filed. On June 7, 2002, the trial court revoked the defendant’s
probation and required him to serve the balance of his sentence. This appeal followed.
                                               Analysis

       The defendant simply argues that the issuance of the capias did not toll the expiration of the
probationary period; therefore, the trial court was without jurisdiction or authority to revoke the
defendant’s probation.

        The State, on the other hand, makes a compelling argument that a capias is synonymous to
an arrest warrant. While acknowledging the capias would not satisfy due process requirements, they
argue the “Violation of Probation” document amended the capias and corrected any due process
defects.

        Tennessee Code Annotated section 40-35-311 provides the procedure to revoke a suspended
sentence or probation and provides as follows:
        (a) Whenever it comes to the attention of the trial judge that any defendant, who has
            been released upon suspension of sentence, has been guilty of any breach of the
            laws of this State or has violated the conditions of probation, the trial judge shall
            have the power to cause to be issued under such trial judge’s hand a warrant for
            the arrest of such defendant as in any other criminal case. Regardless of whether
            the defendant is on probation for a misdemeanor or a felony, or whether the
            warrant is issued by a general sessions court judge or the judge of a court of
            record, such warrant may be executed by a probation officer or any peace officer
            of the county in which the probationer is found.
Tenn. Code Ann. §40-35-311(a) (1997) (emphasis added). It appears the clear intention of the
legislature was to require a warrant for the arrest of a defendant who has committed a probation
violation.

        The State argues and supports it with authority that an arrest warrant and a capias are
synonymous. There may be occasions in which this is true, but not in the instant case. The major
hurdle in accepting the State’s argument is a lack of information contained in this record. Here, there
is no reason stated on the capias as to why it was issued. From this record, we see at least three
possible reasons to issue a capias: (1) the defendant failed to report to jail to serve his 48 hours; (2)
the defendant failed to appear in court on a report back date to evaluate his compliance with the
conditions of probation; and (3) to arrest the defendant upon a probation violation. It is interesting
to note that the “Violation of Probation” document filed on May 7, 2002, alleges only that the
defendant failed to pay all costs associated with his probation. At the probation revocation hearing,
the assistant district attorney stated, “The defendant pled guilty, was supposed to report for his
sentence -- to serve his sentence and never showed up. A capias was issued, and he was served with
that. Now if that, in and of itself, is not a violation of an agreement of a probative sentence, there
is nothing that would be.” The trial court’s order revoking probation finds “. . . that the defendant
has been guilty of violating the laws of this state and has otherwise violated the conditions of his
probation.” The notice to the defendant concerning the probation violations alleged, the statements
of the assistant district attorney, and the findings of the trial court are irreconcilable to us on this
record. Whether a capias issued for the purpose of arresting a probation violator tolls the expiration


                                                  -2-
of a probationary sentence will have to be answered another day, because the record before us is
inconclusive as to the reason why the capias was issued.

                                             Conclusion

        We conclude that the clear intent of the legislature in dealing with probation violations was
the issuance of a warrant, and the issuance of such a warrant tolls the expiration of the probationary
period. The capias issued in this case did not toll the expiration of the probationary period, in large
part, because the record before us is inconclusive as to why the capias was issued. We reverse the
trial court’s judgment revoking the defendant’s probation and conclude his probationary period has
expired.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




                                                 -3-
