            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                     AT KNOXVILLE                     August 26, 1999

                                                                     Cecil Crowson, Jr.
                               JULY 1999 SESSION                     Appellate C ourt
                                                                         Clerk



GERALD H. SCHAFFER,                  *   C.C.A. # 03C01-9807-CR-00226

             Appellant,              *   KNOX COUNTY

VS.                                  *   Hon. Richard Baumgartner, Judge

STATE OF TENNESSEE,                  *   (Probation Revocation)

             Appellee.               *




For Appellant:                           For Appellee:

Mark E. Stephens                         Paul G. Summers
District Public Defender                 Attorney General and Reporter

Jim Owen                                 Todd R. Kelley
Assistant District Public Defender       Assistant Attorney General
1209 Euclid Avenue                       425 Fifth Avenue North
Knoxville, TN 37921                      Second Floor, Cordell Hull Building
(at trial and on appeal)                 Nashville, TN 37243-0493
and
Paula R. Voss                            Marsha Selecman
Assistant Public Defender                Assistant District Attorney General
1209 Euclid Avenue                       400 Main Avenue
Knoxville, TN 37921                      City County Building
(on appeal)                              Knoxville, TN 37902



OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Gerald H. Schaffer, entered pleas of guilt to

aggravated burglary and theft of property less than $1,000.00. On April 20, 1992,

the trial court imposed Range I, three- and one-year sentences, respectively. The

defendant was placed on probation. On July 31, 1992, the state filed a warrant

claiming a violation of the terms of probation. Two and one-half months later, the

trial court entered an order placing the case in the "inactive file." On March 23,

1993, the trial court appointed defense counsel and some five years and one month

later, the warrant seeking revocation was amended to include two additional

grounds. In June of 1998, the trial court revoked probation and ordered a three-year

sentence to be served in the department of correction.



              In this appeal of right, the defendant contends that the trial court erred

by allowing the 1998 amendment which alleged grounds arising after the 1992

warrant. We find no error and affirm the judgment of the trial court.



              The original revocation warrant was issued based upon the

defendant's arrest for aggravated assault on June 19, 1992. That charge was,

however, dismissed on March 2, 1993. Because the defendant, who had been

released on his own recognizance, failed to appear before a probation revocation

hearing on June 4, 1993, a capias was issued for his arrest. The additional

grounds, as specified below, were not filed until 1998:

              (1) The failure of the defendant to procure the consent
              of his probation officer before a change of address, a
              change of employment, or a departure of the county or
              the state;

              (2) The failure to obey the laws of the United States by
              the commission of a robbery in Maryland in 1997.




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              While determining that the defendant was entitled to three hundred

twenty-three days of jail time credit, the trial court determined that the defendant had

violated the conditions of his probation and ordered revocation. The evidentiary

hearing established that the defendant left the state on or about April 20, 1993, and

did not return until shortly before the hearing in 1998. It was uncontested that the

defendant, who had clearly left Tennessee without permission from the authorities,

had subsequently robbed an elderly Maryland woman of a purse.



              In this appeal, the defendant complains that the amendments cannot

relate back to the July 31, 1992, revocation warrant. He asserts that the state

should have amended the warrant immediately after he left the jurisdiction in 1993.



              Tenn. Code Ann. § 40-35-311(a) authorizes the issuance of a warrant

for the arrest of a defendant who has violated the conditions of his probation or

breached the laws of the state. Upon revocation of probation, the trial court has the

discretionary authority to reinstate the original sentence. State v. Duke, 902

S.W.2d 424 (Tenn. Crim. App. 1995). The statute of limitations is tolled by the

issuance of a warrant and not by the service of the warrant on the defendant. Allen

v. State, 505 S.W.2d 715, 717 (Tenn. 1974).



              This case is not distinguishable from the opinion filed by this court in

State v. Clark, 970 S.W.2d 516 (Tenn. Crim. App. 1998), wherein it was held that

because there was a pending revocation warrant on other grounds filed prior to the

expiration of the probationary term, the trial court had authority to revoke probation

for a criminal offense which occurred after the expiration of the term. In Clark, this

court ruled that a revocation warrant, which was filed before the probation period

would have ended, tolled the time limitations because there had been no disposition


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before the amendment. A probation violation occurring after the original term of the

sentence was, therefore, deemed a proper basis for revocation.



              There is a distinction between this case and those in Clark that favors

the position of the state. Here, the revocation was based at least in part on the

defendant's unauthorized departure from the state, a ground documented by the

issuance of a capias in 1993. That violation arose within the original term of

probation and in association with the initial ground alleged in the revocation warrant.

See State v. Lewis, 917 S.W.2d 251 (Tenn. Crim. App. 1995).



              The defendant makes the argument that this court should not follow

the rule in Clark. Had all of the grounds for revocation arisen after the expiration of

the original term, that assertion may have been more persuasive. This court

nonetheless chooses to follow its own precedent. In our view, the trial court had the

authority to revoke probation and did not abuse its discretion. State v. Harkins, 811

S.W.2d 79 (Tenn. 1991). Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Joe G. Riley, Judge




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