         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE

                           JUNE 1998 SESSION



STATE OF TENNESSEE,                )
                                   )    NO. 01C01-9706-CC-00233
      Appellee,                    )
                                   )    WILLIAMSON COUNTY
VS.                                )
                                   )    HON. DONALD P. HARRIS,
JAGATH N. PARACHURI,               )    JUDGE
                                   )
      Appellant.                   )    (Probation Revocation)



FOR THE APPELLANT:                      FOR THE APPELLEE:

THOMAS L. WHITESIDE                     JOHN KNOX WALKUP
172 Second Ave North                    Attorney General and Reporter
Suite 214
Nashville, TN 37201-1908                DEBORAH A. TULLIS
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        JOSEPH D. BAUGH, JR.
                                        District Attorney General
                                        Williamson County Courthouse
                                        Suite G-6
                                        P.O. Box 937
                                        Franklin, TN 37065-0937




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY,
JUDGE
                                        OPINION



       The defendant, Jagath N. Parachuri, appeals the order of the Williamson County

Circuit Court revoking his probation. Since we conclude the court improperly modified

the original sentences, we REVERSE AND REMAND the case to the Williamson

County Circuit Court for entry of proper judgments and any further proceedings

consistent with this opinion.



                                             I.



       The record prepared for appeal in this case falls seriously short of the

requirements of Tenn. R. App. P. 24(a). The probation revocation hearing focused on the

dates of the defendant’s prior arrests and convictions. Although various judgments were

made exhibits, these judgments were not included in the record on appeal. Ordinarily we

would affirm based upon an inadequate record, or order the record to be supplemented.

We believe, however, that sufficient information can be gleaned from the trial court’s

findings to determine that a remand is in order.



       The defendant appears to have been arrested for burglary in Davidson County on

July 27, 1994, and released on bail August 7, 1994. In the next several months, while on

bond for the Davidson County burglary charge, the defendant apparently also committed

offenses in Williamson County which led to indictments for five (5) counts of forgery

and one (1) count of failure to appear. The defendant was also charged in Davidson

County with aggravated burglary. We are only able to determine that this offense was

committed sometime prior to November 22, 1994.



       The defendant was convicted and sentenced for the Williamson County offenses

first. Williamson County, therefore, became the first sentencing court. On May 15,

1995, the defendant was sentenced in Williamson County to concurrent two (2) year

terms for the forgery charges consecutive to a one (1) year term for the failure to appear,


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yielding an effective three-year sentence. The sentences were suspended, and the

defendant was placed on probation.



       Shortly after the Williamson County sentencing, the defendant was sentenced in

Davidson County to Community Corrections for consecutive terms of two (2) years for

the burglary charge and three (3) years for aggravated burglary. Davidson County,

therefore, became the second sentencing court. The defendant alleges that the Davidson

County sentences ran concurrent with the Williamson County sentences, and the

Davidson County court was aware of his Williamson County offenses at the time of

sentencing; however, we are unable to verify this allegation absent a proper record.



       In May 1996, while on probation in Williamson County and Community

Corrections in Davidson County, the defendant pled guilty to driving under the influence

of an intoxicant in Davidson County and was sentenced. As a result, the defendant’s

Community Corrections sentences in Davidson County were revoked, and he was

remanded to serve his effective five-year Davidson County sentences. There is nothing in

the record to indicate whether the Davidson County court made any reference to the

Williamson County sentences..



       On March 24, 1997, the Williamson County court found the defendant violated

the terms of his probation by the being convicted of the DUI in Davidson County. The

Williamson County court revoked the defendant’s probation. For purposes of the

revocation, the Williamson County court found it was the second sentencing court since

Davidson County had already revoked Community Corrections and ordered confinement.

The Williamson County court ordered the Williamson County sentences served

consecutive to the Davidson County burglary conviction because it found the defendant

had been released on bail for that Davidson County offense when the Williamson County

offenses were originally committed.



       The defendant contests the Williamson County court’s authority to alter the


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consecutive/concurrent nature of his sentences. We agree with the defendant’s

contentions.



                                            II.



       Consecutive sentencing is addressed in Tenn. R. Crim. P. 32(c). The Williamson

County court at the revocation hearing found the defendant committed the original

offenses in Wiliamson County after he had been released on bail in Davidson County for

the burglary charge. The Williamson County court at the revocation hearing found,

therefore, that it was required to order consecutive sentences. Tenn. R. Crim. P. 32(c)(3)

provides:

       (3) Mandatory Consecutive Sentences. Where a defendant is convicted of
       multiple offenses from one trial or where the defendant has additional
       sentences not yet fully served as the result of the convictions in the same
       or other court and the law requires consecutive sentences, the sentence
       shall be consecutive whether the judgment explicitly so orders or not.
       This rule shall apply:

               (A) To a sentence for a felony committed while on parole for
                  a felony;

               (B) To a sentence for escape or for a felony committed while
            on escape;

              (C) To a sentence for a felony where the defendant was
       released on bail and the defendant is convicted of both       offenses;
       and

               (D) Any other ground provided by law.


(emphasis added).



       The defendant was convicted and sentenced for the Williamson County offenses

first. When the defendant was subsequently sentenced in Davidson County, the trial

court in Davidson County could have noted the Williamson County convictions were the

result of offenses committed there while on bail from Davidson County and ordered the

Davidson County sentences served consecutively to the Williamson County sentences.

Tenn. R. Crim. P. 32(c)(3)(C). The fact that the Davidson County offense was committed

first, yet Davidson County was the second sentencing court, would not prohibit Davidson

                                            4
County from running its sentences consecutive to the Williamson County sentences as

required by Tenn. R. Crim. P. 32(c)(3)(C). See State v. Blanton, 926 S.W.2d 953, 961

(Tenn. Crim. App. 1996).



                                           III.



       While it appears the Williamson County court was correct in its determination

that the defendant should be required to serve the Williamson County sentences and the

Davidson County burglary sentence consecutively, the Williamson County court had no

authority to so order. Williamson County was the first sentencing court and, at the time

of the original sentencing in Williamson County, could not and did not order the

Williamson County sentences to run consecutively to a yet to be imposed Davidson

County sentence. Thus, the original sentence imposed by Williamson County was correct

in making no reference to the Davidson County pending cases.



                                           IV.



       The options available to a trial court upon revocation of probation are limited by

statute. Tenn. Code Ann. § 40-35-311(d) provides:


                If the trial judge should find that the defendant has violated the
       conditions of his probation and suspension by a preponderance of the
       evidence, the trial judge shall have the right by order duly entered upon the
       minutes of his court, to revoke the probation and suspension of sentence
       and cause the defendant to commence the execution of judgment as
       originally entered, or otherwise in accordance with § 40-35-310; provided,
       that in case of such revocation of probation and suspension, the defendant
       has the right to appeal.


(emphasis added).

Tenn. Code Ann. § 40-35-310 provides:


                The trial judge possess the power, at any time within the maximum
       time which was directed and ordered by the court for such suspension,
       after proceeding as provided in § 40-35-311, to revoke and annul such
       suspension, and in such cases the original judgment so rendered by the
       trial judge shall be in full force and effect from the date of the revocation

                                            5
           of such suspension, and shall be executed accordingly; provided, that in
           any case of revocation of suspension on account of conduct by the
           defendant which has resulted in a judgment of conviction against him
           during his period of probation, the trial judge may order that the term of
           imprisonment imposed by the original judgment be served consecutively
           to any sentence which was imposed upon such conviction.


(emphasis added).



Thus, “a trial court that determines that a probation violation has occurred can cause

execution of the original judgment as it was originally entered, see Tenn. Code Ann. §

40-35-310, -311, or can modify the defendant’s conditions of supervision, including

extending the defendant’s probationary period for up to two years. See Tenn. Code Ann.

§ 40-35-308.” State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App.

1997)(emphasis added).



           Under our revocation statutes a trial court does not have the authority to alter the

original sentence to run it consecutive to another sentence except for an offense

committed while on probation. When a trial court finds a defendant violated the terms of

his probation, the trial court has the right to revoke the probation and “cause the

defendant to commence the execution of judgment as originally entered . . .” Tenn. Code

Ann. § 40-35-311(d)(emphasis added). The Williamson County trial court’s only

determination of consecutive sentencing is to the triggering offense upon which the

revocation is based. See Tenn. Code



Ann. § 40-35-310. That determination is discretionary with the trial court under this

statute.



                                                V.



           If the Williamson County offenses were committed when the defendant was on

bail for the Davidson County burglary charge, we agree that the Williamson County

sentence and the Davidson County burglary sentence should have run consecutively

                                                 6
pursuant to Tenn. R. Crim. P. 32(c)(3)(C). This should have been done by the Davidson

County court at the time it originally sentenced the defendant. However, this cannot be

done by Williamson County upon revocation of probation.



       We know not whether the proper facts were made known to the Davidson County

court at the time of the original sentence there or at its revocation hearing. We voice no

opinion as to the propriety of Davidson County amending its sentences as those cases are

not before us on appeal.



                                            VI.



       Although not raised by the parties, we note that the revocation order contains

errors as to the consecutive/concurrent nature of the six (6) Williamson County

convictions. The revocation order runs one (1) forgery count concurrent with the failure

to appear and the other four (4) forgery counts consecutive to the other two (2) counts.

This does not appear consistent with the original judgments, nor does it appear to be

consistent with the intentions of the trial court. The confusion appears to have arisen

from improper matching of convictions with docket numbers.




                                           VII.



       Upon remand, the trial court shall enter an order simply reinstating the original

sentences without any reference to the Davidson County sentences. Further, there should

be no alteration from the original judgments as to how the six (6) Williamson County

sentences will be served in relation to each other. As we understand those judgments, all

forgery counts run concurrent with each other, but the failure to appear count runs

consecutive for an effective sentence of three (3) years. These sentences also run

concurrent with the triggering Davidson County DUI since the trial court did not specify

a consecutive sentence.

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                                    CONCLUSION



       This case is REVERSED AND REMANDED for entry of proper judgments and

any further proceedings consistent with this opinion.




                                                    ________________________
                                                    JOE G. RILEY, JUDGE




CONCUR:




__________________________
CURWOOD WITT, JUDGE




__________________________
LEE MOORE, SPECIAL JUDGE




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