                                                     FILED
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE
                                                     December 7, 1998
                           SEPTEMBER 1998 SESSION
                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )
             Appellee,               )    C.C.A. No. 01C01-9710-CC-00468
                                     )
vs.                                  )    Maury County
                                     )
BILLY GENE ODEN, JR.,                )    Hon. Jim T. Hamilton, Judge
                                     )
             Appellant.              )    (Probation Revocation)




FOR THE APPELLANT:                        FOR THE APPELLEE:

SHARA ANN FLACY                           JOHN KNOX WALKUP
District Public Defender                  Attorney General & Reporter

WILLIAM C. BRIGHT (at hearing)            LISA A. NAYLOR
JOSEPH L. PENROD (on appeal)              Asst. Attorney General
Asst. District Public Defenders           425 Fifth Ave. N., 2d Floor
128 N. Second St.                         Nashville, TN 37243-0493
P.O. Box 1208
Pulaski, TN 38478                         MIKE BOTTOMS
                                          District Attorney General

                                          LARRY NICKELL
                                          Asst. District Attorney General
                                          P.O. Box 1619
                                          Columbia, TN 38401-1619



OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                     OPINION

              The defendant, Billy Gene Oden, Jr., appeals from the trial court's

order revoking his probation and ordering him to serve his sentence in the

Department of Correction. In this appeal, he claims the trial court was without

jurisdiction to revoke his probation because his sentence had expired and because

the court which revoked his probation was not the sentencing court. After a review

of the record and the parties' briefs, we affirm the trial court’s revocation of

probation.



              On July 7, 1992, Oden entered best-interest guilty pleas to one count

of aggravated burglary and one count of theft of property over $1,000.1 The plea

agreement called for sentencing as a Range I offender, with a six year sentence for

aggravated burglary and a two year sentence for theft. The sentences were to be

served concurrently to each other but consecutively to sentences for five other

convictions. The first year of the effective six year sentence was to be served in the

Department of Correction, with the balance on probation. The plea was accepted

by Judge James L. Weatherford, Circuit Court Judge of the Twenty-Second Judicial

District.



              The record does not reflect when the defendant began serving this

sentence; however, on May 24, 1996 Judge Weatherford placed the defendant on

supervised probation for one year relative to these offenses. On July 23, 1997,

Judge Jim T. Hamilton, Circuit Court Judge of the Twenty-Second Judicial District,

issued a probation violation warrant based upon the defendant's "failure to report

to the TBI as part of the Sexual Offender Registration and Monitoring Act[.]"


       1
       In North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), the United
States Supreme Court held that a criminal defendant may enter a guilty plea
without admitting guilt if the defendant intelligently concludes his best interests
would be served by a plea of guilty.

                                          2
Thereafter, on August 21, 1997, Senior Judge James L. Weatherford, sitting by

designation and assignment of the Chief Justice of the Tennessee Supreme Court,

issued a probation violation warrant for the defendant based upon new criminal

charges of attempted aggravated rape and attempted burglary.



              Judge Hamilton presided without objection at the defendant's

revocation hearing.    The only proof presented by the state pertained to the

defendant's alleged criminal activity, the subject of the second revocation warrant.

At the conclusion of the proof he found sufficient proof that the defendant had

violated the terms of his probation. He revoked the defendant's probation and

ordered him to serve his sentence in the Department of Correction.



                                          I

              First, the defendant challenges the court's jurisdiction to revoke his

probation, which he claims had expired prior to these proceedings. He relies on the

May 24, 1996 order imposing one year of supervised probation, claiming the effect

of this order is to shorten his sentence. Therefore, he reasons, his sentence had

expired prior to the commencement of the revocation proceedings. We disagree.



              The defendant received his effective six year sentence on July 7,

1992. Even if he had begun service of that sentence immediately, which it appears

he did not, the relevant revocation warrant was issued less than six years later.

With respect to the May 24, 1996 order placing him on supervised probation for one

year, we believe this order simply dealt with the manner of service of that portion of

the defendant's sentence, i.e. supervised as opposed to unsupervised probation.

Furthermore, the defendant has cited no legal authority which would allow the trial

court to shorten a sentence in the manner the defendant claims Judge Weatherford

did in his case. To the contrary, the Sentencing Reform Act allows the court to

                                          3
release a defendant from supervision, and specifies that such action "shall not

discharge the defendant from the remainder of the sentence." Tenn. Code Ann. §

40-35-308(a)(3) (1997). In the case of such action, the defendant remains subject

to revocation. Tenn. Code Ann. § 40-35-308(a)(3) (1997). In this case, the obvious

import of the Judge Weatherford's probation order was to release the defendant

from supervision one year after entry of the May 23, 1996 order. It did nothing to

decrease the length of his sentence.



             Accordingly, the revocation proceeding was commenced within the

probationary period.



                                         II

             The defendant also questions whether Judge Hamilton had the

authority to revoke the defendant's probation because Circuit Court Judge

Weatherford, not Judge Hamilton, presided at the sentencing hearing. 2           The

Sentencing Reform Act provides

      Whenever any person is arrested for the violation of probation and
      suspension of sentence, the trial judge granting such probation and
      suspension of sentence, the trial judge's successor, or any judge of
      equal jurisdiction who is requested by such granting trial judge to do
      so shall, at the earliest practicable time, inquire into the charges and
      determine whether or not a violation has occurred, and at such
      inquiry, the defendant must be present and is entitled to be
      represented by counsel and has the right to introduce testimony in the
      defendant's behalf.

Tenn. Code Ann. § 40-35-311(b) (Supp. 1998) (emphasis added); see also State

v. Duke, 902 S.W.2d 424, 426 (Tenn. Crim. App. 1995).




      2
        The defendant also claims that Judge Hamilton was not the proper judge
for conducting the revocation hearing because Judge Weatherford was the judge
who shortened the defendant's sentence. As discussed in Section I, supra, the
action by Judge Weatherford was a release from supervision, not a shortening of
sentence.

                                         4
              The record reflects that the defendant made no objection to Judge

Hamilton conducting the revocation hearing. The matter was called for hearing

before Judge Hamilton on September 2, 1997.             The state presented three

witnesses, and the witnesses were subject to cross-examination by defense

counsel. The case was argued by both sides, and Judge Hamilton revoked the

defendant’s probation. The defendant did not raise the issue that Judge Hamilton

was disqualified to sit until the present appeal to this court. We hold that he may

not raise that issue after he “failed to take whatever action was reasonably available

to prevent or nullify the harmful effect of [any] error” in the proceedings below.

Tenn. R. App. P. 36(a). Judge Hamilton proceeded to hear the case in the absence

of any objection from the defendant who merely awaited an unfavorable ruling

before raising the issue on appeal. 3



              Our conclusion that the issue is waived under rule 36(a) is buttressed

by the fact that, in his appeal, the defendant has complained only about the

timeliness of the revocation warrant and the service of Judge Hamilton in

conducting the hearing. Significantly, he has not alleged that Judge Hamilton’s

decision to revoke probation is wrong or unjustified. Essentially, in addition to

waiving the issue, the defendant has failed to allege -- and the record fails to

demonstrate -- any prejudice from Judge Hamilton's conducting the hearing. As

such, the error, if any, was harmless. Tenn. R. App. P. 36(b); Tenn. R. Crim. P.

52(a).



         3
        In so holding, we note that Judge Weatherford was unavailable because
he had left the circuit court bench. Thus, it is possible that Judge Hamilton heard
the case because he was Judge Weatherford's successor. It is also possible
that the defendant thought Judge Hamilton's court was a more favorable forum
than Judge Weatherford's successor's court. We decline to establish authority
which would allow a defendant to take advantage of the latter situation by "forum
shopping" by sitting on an objection to the presiding judge at a revocation
hearing and then raising it for the first time on appeal in order to get a second
revocation hearing.

                                          5
          For these reasons, the judgment of the trial court is affirmed.




                                      _________________________________
                                      JAMES CURWOOD WITT, JR., JUDGE

CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE


_______________________________
THOMAS T. WOODALL, JUDGE




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