         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 14, 2001 Session

                   STATE OF TENNESSEE v. SANDRA BROWN

                  Direct Appeal from the Criminal Court for White County
                           No. CR560      Lillie Ann Sells, Judge




                  No. M2000-00792-CCA-R3-CD - Filed September 19, 2001


The defendant appeals the judgment of the trial court revoking her probation. She raises two issues:
(1) whether the evidence supported the trial court’s finding that she violated the terms of her
probation by committing the offense of accessory after the fact; and (2) whether the trial court had
the authority to order her to continue her supervised probation pending this appeal. After a thorough
review of the record, we find both issues have merit; therefore, we reverse the judgment of the trial
court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES
CURWOOD WITT, JR., JJ., joined.

John B. Nisbet, III, Cookeville, Tennessee, for the appellant, Sandra Brown.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Edward Gibson, District Attorney General; and William M. Locke, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                            OPINION

       The defendant pled guilty to attempted accessory after the fact, a Class A misdemeanor, on
September 3, 1999, in the General Sessions Court of White County after an officer observed her
driving a vehicle with her husband, George Brown, an escaped felon, as a passenger. She was
sentenced to 11 months and 29 days, all suspended except for 40 days in confinement, with the
remainder of the sentence to be served on supervised probation. The general sessions court issued
an order enumerating the terms of the defendant’s probation as numbered rules, with Rule 1 being:
         [The defendant] will not violate any law; the violation of the law shall be construed
         a violation of probation. Any new violations are to be reported to the probation officer
         within 72 hours. New law violations may result in a violation warrant being issued.


        In October 1999, after George Brown had again escaped from jail, sheriff’s department
officers had a conversation with the defendant in which they questioned her regarding her husband’s
location, advised her that he had again escaped from jail, and instructed her to “bring him in.”

        On December 24, 1999, the sheriff’s department received information that George Brown
was at his mother’s trailer. Officers entered the trailer and found George Brown and the defendant
in a bed. Corporal Chris Luna of the White County Sheriff’s Department charged the defendant with
being an accessory after the fact. Probation officer Joel Colton executed an affidavit alleging the
defendant had violated Rule 1 of the terms of her probation by committing accessory after the fact
on December 24, 1999. The general sessions court issued a probation violation warrant based on
Colton’s affidavit. On February 4, 2000, the general sessions court conducted a combined
preliminary hearing and probation violation hearing. It dismissed Corporal Luna’s warrant for lack
of probable cause, yet revoked the defendant’s probation. The defendant then filed a timely appeal
of her probation revocation to the White County Criminal Court.

        On March 30, 2000, the criminal court conducted a de novo probation violation hearing. See
State v. Cunningham, 972 S.W.2d 16, 18 (Tenn. Crim. App. 1998). Joel Colton testified that the
December 24, 1999, charge for accessory after the fact was the sole basis for the probation violation
warrant. Corporal Luna testified that on December 24, 1999, the defendant and her husband were
in bed together in her mother-in-law’s trailer. The criminal court judge found by a preponderance
of the evidence that the defendant had violated her probation and revoked probation.1 The trial court
allowed the defendant to remain on bond and also ordered the defendant to remain on supervised
probation pending her appeal to this court. The revocation order was not entered until November
14, 2000.2




         1
            The trial court initially stated it found “p robable cause” that the defendan t had violated her prob ation. The
court later changed its finding, stating it found by a “preponderance of the evidence” that the defendant had violated her
probatio n. A “prob able cause ” finding is insufficient to justify a revoca tion. See Tenn. C ode Ann . § 40-35 -311(d) .

         2
           Between March 30, 2000, and November 14, 200 0, the genera l sessions cou rt issued ano ther violation w arrant,
as did the criminal court. On November 20, 2000, the criminal court issued yet another vio lation warran t. All of these
warrants were for reasons unrelated to the present appeal. W e are unaware of the outco me of these warrants.
Subsequ ently in this opinion we conclude the trial court erred in requiring a continuation of supervised probation during
appeal, but also con clude the trial co urt has author ity to conduc t a revocation of probation proceeding based on violations
of law committed during the time the defendant was released on bail during the ap peal. See State v. Stone, 880 S.W.2d
746, 74 8 (Tenn . Crim. App . 1994).

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   I. PROBATION VIOLATION FOR OFFENSE OF ACCESSORY AFTER THE FACT

        The defendant contends the trial court erred in finding the defendant had violated her
probation by committing the offense of accessory after the fact. A trial court may revoke probation
and order the imposition of the original sentence upon finding by a “preponderance of the evidence”
that the person has violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, -311(d). The
decision to revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation is subject to an abuse of
discretion standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). Discretion is abused only if the record contains no substantial evidence to support the
conclusion of the trial court that a violation of probation has occurred. Id.; State v. Gregory, 946
S.W.2d 829, 832 (Tenn. Crim. App. 1997).

        In the case sub judice, the probation violation warrant alleged only one violation, that the
defendant committed accessory after the fact on December 24, 1999. The proof at the violation
hearing before the criminal court established that officers found the defendant in bed with her
husband, a felony escapee, in a home owned by her husband’s mother. The offense of accessory after
the fact is defined as:

          A person is an accessory after the fact who, after the commission of a felony, with
          knowledge or reasonable ground to believe that the offender has committed the
          felony, and with the intent to hinder the arrest, trial, conviction or punishment of the
          offender:

          (1) Harbors or conceals the offender;

          (2) Provides or aids in providing the offender with any means of avoiding arrest, trial,
          conviction or punishment; or

          (3) Warns the offender of impending apprehension or discovery.

Tenn. Code Ann. § 39-11-411(a).

       After carefully reviewing the record, we can find no substantial evidence establishing by a
preponderance of the evidence that the defendant’s presence with her escaped husband in his mother’s
home made her an accessory after the fact as defined by the statute.3 Since this was the sole basis for
revoking probation, we conclude the trial court erred in revoking the defendant’s probation.


          3
            It may also be that the present statute, Tenn. Code Ann. § 39-11-411 (1997), like the former statute, Tenn.
 Code Ann. § 39-1-30 6 (1982), also requires that the principal be convicted prior to the trial of the accessory after the
 fact. See State v. Hodgkinson, 778 S.W.2d 54 , 63 (Tenn. Crim. App. 1989) (holding that under Tenn. Code Ann. § 39-1-
 306 (1982) the principal must first be tried and convicted before accessory after the fact can be established). The
 conviction of Georg e Brown for escape was not estab lished at the hea ring.

                                                           -3-
                       II. COURT’S AUTHORITY PENDING APPEAL

         Further, the defendant argues the trial court erred in ordering the defendant to continue her
supervised probation while she appealed the judgment of the trial court revoking her probation. The
state, in its brief, concedes that the trial court acted improperly in this respect. We agree, but for a
different reason than that advanced by the defendant and the state.

         In State v. Lyons, a case cited by both parties, this court held that when a defendant is
convicted of a misdemeanor and sentenced to probation, the sentence is stayed pending the outcome
of the appeal. 29 S.W.3d 48, 50 (Tenn. Crim. App. 1999). However, this statement in Lyons related
to a direct appeal of the sentence and not an appeal of a revocation order. More specifically, we held
in Lyons the revocation warrant was issued prior to the expiration of probation since probation had
been automatically stayed during the previous direct appeal of the sentence. Id.

        Here, the issue is whether the trial court can require a defendant to remain on supervised
probation during the appeal of an order of revocation. The trial court has authority to release a
defendant on bail pending appellate review of a revocation of probation. Tenn. R. Crim. P. 32(g).
The trial court can set reasonable conditions of bail, including placing the defendant “under the
supervision of an available probation counselor or other appropriate public official.” Tenn. Code
Ann. § 40-11-116(b)(2). If a defendant violates a condition of bail, bail can be revoked. In addition,
the trial court retains the authority to revoke probation based upon commission of a new offense
during a defendant’s release on bail pending appeal, even prior to the beginning of the probationary
term. State v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994).

         In this case, however, the trial court both allowed the defendant to remain on bail pending
appeal and required her to “remain on supervised probation.” Although the trial court has authority
under Stone to conduct a revocation of probation hearing based upon new violations of law during
the appeal, the trial court does not have authority to require the defendant to remain on supervised
probation during the appeal unless reporting to a probation officer is a condition of bail. Our review
of the transcript and order does not reflect that supervised probation was a condition of bail. Thus,
the trial court erred in ordering a continuation of supervised probation during the appeal.


                                          CONCLUSION

        Accordingly, we reverse the judgment of the court below. The state did not establish a
violation of probation, and the trial court erroneously ordered a continuation of supervised probation
during appeal. Nevertheless, upon remand the trial court will give the defendant credit toward
probation for all times during which the defendant was in compliance with the conditions of
probation.




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      _____________________________________
      JOE G. RILEY, JUDGE




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