           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                         MARCH 1998 SESSION
                                                    FILED
                                                       June 4, 1998

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,        )                        Appellate C ourt Clerk
                           )      No. 02-C-01-9709-CC-00366
            APPELLEE,      )
                           )      Benton County
v.                         )
                           )      Honorable Julian P. Guinn, Judge
ERIC M. FLORENCE,          )
                           )      (Sentencing)
            APPELLANT.     )




FOR THE APPELLANT:                FOR THE APPELLEE:

Terry J. Leonard                  John Knox Walkup
Attorney at Law                   Attorney General & Reporter
9 North Court Square              425 Fifth Avenue, North
P. O. Box 957                     Nashville, TN 37243-0497
Camden, TN 38320
                                  Douglas D. Himes
                                  Assistant Attorney General
                                  425 Fifth Avenue, North
                                  Nashville, TN 37243-0493

                                  G. Robert Radford
                                  District Attorney General
                                  111 Church Street
                                  P. O. Box 686
                                  Huntingdon, TN 38344-0686

                                  Jerry W. Wallace
                                  Assistant District Attorney General
                                  P. O. Box 637
                                  Parsons, TN 38363-0637



OPINION FILED: __________________


REMANDED


GARY R. WADE, JUDGE
                                    OPINION

              The defendant, Eric M. Florence, entered pleas of guilt in the General

Sessions Court of Benton County to possession of marijuana and unlawful

possession of alcohol. He was sentenced to eleven months and twenty-nine days in

the county jail; all but two days were suspended on each count. The sentences

were to be concurrently served. The defendant incurred additional charges and his

probation was revoked. He served a portion of his general sessions sentence and

then moved the court to suspend the remainder. The general sessions court denied

the motion. The defendant appealed to the circuit court. That court affirmed the

decision of the general sessions court.



              In this appeal of right, the defendant contends that the Circuit Court of

Benton County, Tennessee, erred by failing to suspend the balance of the sentence

imposed by the general sessions court. For the reasons stated herein, the cause

must be remanded to the circuit court for further proceedings consistent with this

opinion.



              In December 1995, the defendant entered pleas of guilt to simple

possession of marijuana and unlawful possession of alcohol. When he reported to

jail, he had marijuana in his possession. A revocation warrant issued and, at the

first scheduled hearing on the warrant, the defendant, who by then had apparently

served his original two-day sentence, failed to appear.



              At a rescheduled hearing on May 8, 1996, the general sessions court

revoked probation on the initial charges. On June 10, the defendant pleaded guilty

in circuit court to introducing a controlled substance into a prison facility. The circuit

court sentenced the defendant to serve three (3) years: one (1) year in the jail and


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two (2) years on supervised probation.



              On September 19, 1996, the defendant filed a motion asking the

general sessions judge to suspend the balance of the defendant’s sentence on the

original charges. The motion was withdrawn January 29, 1997. Almost five months

later, the defendant filed a second motion asking that the balance of his sentence

for the original charges be suspended and that he serve the remainder of the time

on supervised probation. Five days later, the general sessions judge overruled the

motion. The defendant made bail on July 3, 1997, after appealing to the circuit

court.



              The circuit court identified the issue on appeal as whether the general

sessions judge was correct in revoking the defendant’s probation. On August 21,

1997, the circuit court ruled (a) that the defendant had not properly presented the

issue to the circuit court and decided (b) that judgments regarding sentences on

violation of probation from general sessions court should be free from tampering. At

the conclusion of the hearing, the trial court made the following ruling:

                  [I]n this particular case the length of sentence from
              the General Sessions Court is not before this Court. I
              have on occasions in the past had that issue put up here
              and have ruled upon it. But that’s not the question that
              the Court has to grapple with now. That sentence was
              fixed by the General Sessions Judge. It was not
              appealed and it is firm. It has reached finality. The only
              question that’s before this Court is whether the General
              Sessions Judge was correct in the revoking of an earlier
              probated sentence upon a second conviction involving
              controlled substances. And this Court has to find that
              that Judge was absolutely and totally appropriate in
              doing that. If he didn’t do that justice would, quite simply,
              go out the window the very same day that he refused to
              act or react. The people of Benton County have put him
              there to do precisely that.
                  The relief that you’re looking for in this case is a
              suspended sentence. And that issue is not before this
              Court. You get a suspended sentence from the General
              Sessions Judge, sir. That’s where you’re going to have

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              to find your relief. Draw an order overruling it in this
              Court, sir.

(Emphasis added).



                                            I

              The defendant’s probation on the initial offenses was revoked on May

8, 1996. The defendant was ordered to serve his sentence in its entirety beginning

"immediately." There is no indication in the record that the defendant ever appealed

that action. According to Tenn. Code Ann. § 27-5-108 a party may appeal a

decision from the general sessions court to the circuit court within ten days. "If no

appeal is taken within the time provided, then execution may issue." Tenn. Code

Ann. § 27-5-108(d).

              Tennessee Code Annotated § 27-3-131 provides as follows:

              (a) Notwithstanding Rule 5(c)(2) of the Tennessee Rules
              of Criminal Procedure to the contrary, the defendant may
              in any case covered by such rule appeal a verdict of
              guilty or the sentence imposed or both to the circuit or
              criminal court for a trial de novo with or without a jury.
              (b) Demand for a jury trial shall be made at the time of
              filing an appeal under § 27-5-108, to the circuit court or
              criminal court. If such demand is not made at the time of
              filing the appeal, the right to a trial by jury is waived.



              Because no appeal was filed with regard to the revocation, the May 8,

1996, revocation of probation was final. Contrary to the finding by the circuit judge,

the propriety of the revocation was not the issue before the circuit court.



                                            II

              In our view, the issue appealed to the circuit court was the propriety of

the general sessions judge's June 24, 1997, order denying the defendant's motion

for a reduction, alteration, or suspension of the sentence:



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              The court shall retain full jurisdiction over the defendant
              during the term of such sentence and may reduce or
              modify the sentence or may place the defendant on
              probation supervision where otherwise eligible.
              Following the first application, applications to reduce or to
              alter the manner of the service of the sentence may be
              made at no less than two (2) month intervals.

Tenn. Code Ann. § 40-35-314(c).



              Once the general sessions judge denied the defendant's request to

suspend the sentence, the defendant had ten days to appeal. Tenn. Code Ann. §

27-5-108. As the state correctly points out, there is no notice of appeal contained in

the record. The record does, however, contain an appeal bond dated July 3, 1997,

and an order dated July 8, 1997, from the circuit judge setting the matter for trial. In

order to perfect an appeal, the defendant need only post a bond in the general

sessions court within ten days, "usually the same bond originally set for bail." 9

Raybin, Tennessee Practice § 7.13; Tenn. Code Ann. §§ 27-5-103, -105, -108.



              Tennessee Code Annotated § 27-5-108(c) provides that any appeal

taken from the general sessions court to the circuit court will be de novo. In this

case, the circuit judge heard testimony from the defendant and the defendant's

father in support of the defendant's motion for a suspended sentence. The judge

mistakenly believed he did not have authority to rule on the issue of suspending the

sentence. For that reason, this cause must be remanded to the circuit court for a

ruling on the issue of whether to suspend all or any part of the defendant's

sentence.



              If the circuit judge determines that the motion for suspension of

sentence should be denied, as the general sessions judge did, a determination

needs to be made as to how much additional time the defendant must serve.


                                           5
Apparently the defendant has not returned to the county jail to complete his

sentence on the original charges of unlawful possession of alcohol and possession

of marijuana even though the trial judge ordered that he serve the remainder of that

sentence "immediately." The record is unclear as to how much time the defendant

has served toward satisfying the sentence imposed after the revocation of

probation. One pleading suggests the defendant had served four months. A

second indicates he has served forty-one days. The defendant testified in the final

hearing on August 21, 1997, that he had served fifty-nine days of that sentence.

The record is also unclear as to the defendant's status between the May 8, 1996

revocation hearing and the motion made in June 1997 for suspension of sentence.

It does appear that the defendant served a year in continuous confinement on the

conviction for introducing drugs into jail sometime between June 10, 1996, and June

19, 1997.



             In summary, the cause is remanded to the circuit court for a

determination of the request for reduction or modification of the original sentence.



                                         _________________________________
                                         GARY R. WADE, JUDGE

CONCUR:



(SEE BELOW)
JOE B. JONES, PRESIDING JUDGE



__________________________________
JERRY L. SMITH, JUDGE



The Honorable Joe B. Jones died May 1, 1998, and did not participate in this
opinion. We acknowledge his faithful service to the Tennessee Court of Criminal
Appeals, both as our colleague and as our Presiding Judge.

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