            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE            FILED
                               SEPTEMBER 1997 SESSION
                                                              January 8, 1998

                                                          Cecil W. Crowson
STATE OF TENNESSEE,                *    C.C.A. # 01C01-9610-CR-00433 Clerk
                                                        Appellate Court

              Appellee,            *    SUMNER COUNTY

VS.                                *    Hon. Jane W. Wheatcraft, Judge

TYRONE WATKINS,                    *    (Certified Question of Law)

              Appellant.           *




For Appellant:                          For Appellee:

David A. Doyle                          Charles W. Burson
District Public Defender                Attorney General and Reporter
Eighteenth Judicial District
117 East Main Street                    Clinton J. Morgan
Gallatin, TN 37066                      Counsel for the State
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        Thomas Dean
                                        Assistant District Attorney General
                                        113 West Main Street
                                        Gallatin, TN 37066




OPINION FILED:__________________________




REVERSED AND DISMISSED




GARY R. WADE, JUDGE
                                       OPINION

              The defendant, Tyrone Watkins, was convicted on July 18, 1994, of

two Class A misdemeanors. While allowing pretrial jail credit, the trial court imposed

consecutive sentences of eleven months and twenty-nine days, the remainder of

which was to be served on probation. On February 16, 1996, a warrant was issued

which resulted in the revocation of probation.



              The question of law certified for review is whether the probationary

term had expired prior to the commencement of the revocation proceeding. Rule

37(b)(2)(i), Tenn. R. Crim. P. We must reverse the judgment of the trial court; the

cause is dismissed.



              One of the judgments of conviction provided for pretrial jail credit from

February 10 through July 18 of 1994, a period of five months and eight days. The

defendant contends that this jail credit effectively reduced the two consecutive

eleven-month, twenty-nine-day probationary sentences. The state insists that the

defendant does not receive the pretrial jail credit unless he is actually ordered to

serve the sentence in custody and thus the period of probation extended into July

1996, several months beyond when the warrant was issued.



              The revocation warrant included allegations that the defendant had

violated the terms of his probation by being found guilty of driving on a revoked

license, by being convicted for facilitation of the possession of Schedule VI drugs,

and by failing to pay costs or restitution as ordered in the original judgment. The

defendant filed a motion to dismiss which the trial court eventually denied. The

defendant then pled guilty to having violated probation on the condition that he be

allowed to appeal this dispositive certified question of law.


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              Trial courts are empowered to revoke suspended sentences. Tenn.

Code Ann. § 40-35-310. That statutory authority grants trial judges the discretion "to

commence the execution of the judgment as originally entered." Tenn. Code Ann. §

40-35-311(d). Further, the Sentencing Commission Comments to § 40-35-310

provide that upon revocation, the original sentence "can be placed into effect." See

also State v. Duke, 902 S.W.2d 424 (Tenn. Crim. App. 1995). A defendant is

released from probation, however, after his or her sentence has expired. The trial

court has no authority to revoke probation after the sentence has elapsed. State v.

Steven B. Mangrum, No. 01C01-9007-CC-00176 (Tenn. Crim. App., at Nashville,

Feb. 21, 1991). A probationary period beyond the sentence imposed is illegal and

subject to be set aside at anytime. State v. Jason C. Deyton, Jr., No. 234 (Tenn.

Crim. App., at Knoxville, Feb. 2, 1989). See State v. Burkhart, 566 S.W.2d 871

(Tenn. 1978) (holding that an illegal sentence may be set aside at any time).



              The question to be addressed in this case, however, involves the

manner of calculating the pretrial jail credit:

              Commencement of sentence--Credit for pretrial
              detention and jail time pending appeal.--(a) When a
              person is sentenced to imprisonment, the judgment of
              the court shall be rendered so that such sentence shall
              commence on the day on which the defendant legally
              comes into the custody of the sheriff for execution of the
              judgment of imprisonment.

                                            ***

                (c) The trial court shall, at the time the sentence is
              imposed and the defendant is committed to jail, the
              workhouse or the state penitentiary for imprisonment,
              render the judgment of the court so as to allow the
              defendant credit on the sentence for any period of time
              for which the defendant was committed and held in the
              city jail or juvenile court detention prior to waiver of
              juvenile court jurisdiction, or county jail or workhouse,
              pending arraignment and trial. The defendant shall also
              receive credit on the sentence for the time served in the
              jail, workhouse or penitentiary subsequent to any
              conviction arising out of the original offense for which the

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              defendant was tried.

                                          ***

Tenn. Code Ann. § 40-23-101.



              Our law requires that the pretrial jail credit diminish the sentence:

              In imposing a misdemeanor sentence, the court shall fix
              a specific number of months, days or hours, and the
              defendant shall be responsible for the entire sentence
              undiminished by sentence credits of any sort except for
              credits authorized by § 40-23-101, relative to pretrial jail
              credit, .... The court shall impose a sentence consistent
              with the purposes and principles of this chapter.


Tenn. Code Ann. § 40-35-302(b).



              The purpose of the pretrial jail credit statute is to treat those unable to

make bail in much the same manner as those that are. State v. Abernathy, 649

S.W.2d 285 (Tenn. Crim. App. 1983). "The legislature in its wisdom recognized an

injustice between the person of means who could make bond and the person who

could not and had to languish in jail." Id. at 286.



              In State v. Vito Summa, No. 02C01-9411-CR-00254 (Tenn. Crim.

App., at Jackson, Dec. 28, 1995), app. denied, (Tenn., May 13, 1996), a panel of

our court ruled that after a period of "actual incarceration" on an eleven-month and

twenty-nine-day sentence, the trial judge could not sentence the defendant to a

probationary term longer than six months and twenty-two days, the balance of the

term. Slip op. at 5. The probationary period which was in excess of the total of

eleven months and twenty-nine days after the calculation of sentence credits was

held to be void.



              Here, the defendant was convicted of Class A misdemeanors and

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could not be sentenced to more than eleven months, twenty-nine days for each

offense. Tenn. Code Ann. § 40-35-111(e)(1). Thus, for the conviction for which the

defendant was entitled to five months and eight days of jail credit, his probationary

term could be only so long as to allow an entire sentence of eleven months, twenty-

nine days. There is no authority for the trial court to order a sentence of eleven

months, twenty-nine days plus five months and eight days. According to our

calculations, the defendant's probationary term expired on or about February 8,

1996.



                In general, the trial court may not impose a period of probation that

exceeds the sentence authorized by law. Because the sentence of the defendant

began at the time he was placed in jail, the trial court had no authority to revoke

probation after each of the two consecutive eleven-month, twenty-nine-day

sentences had expired.1



                Accordingly, the judgment of the trial court is reversed and the cause

is dismissed.



                                                 ________________________________
                                                 Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________

        1
          The first eleven-month, twenty-nine-day sentence had expired over a year before the filing of
the probation violation warrant. Had the state been correct in its position, a revocation would have
affecte d only the se cond o f the two s entenc es. See State v. Jeffrey D. Hunter, No. 01C01-9608-CC-
00334 (Tenn . Crim. A pp., at Na shville, Oc t. 30, 1997 ).

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Curwood Witt, Judge




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