Kimberly Street v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 29, 1998
• Docket: 01C01-9707-CC-00250
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE 1998 SESSION July 29, 1998

Cecil W. Crowson Appellate Court Clerk KIMBERLY SUTTON STREET, ) ) NO. 01C01-9707-CC-00250 Appellant, ) ) RUTHERFORD COUNTY VS. ) ) HON. J.S. DANIEL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES R. RAY JOHN KNOX WALKUP 211 Third Avenue North Attorney General and Reporter P.O. Box 198288 Nashville, TN 37219-8288 ELLEN H. POLLACK Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

WILLIAM C. WHITESELL, JR. District Attorney General 303 Rutherford Co. Judicial Bldg. Murfreesboro, TN 37130

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The petitioner, Kimberly Sutton Street, appeals the denial of her petition

for post-conviction relief by the Circuit Court of Rutherford County. The

petitioner contends that the trial court did not have jurisdiction to alter the

conditions of her appeal bond; therefore, the alteration resulted in “punishment.”

She contends that serving the original sentence imposed by the trial court would

violate her constitutional right against double jeopardy. The judgment of the trial

court is AFFIRMED.

I.

The petitioner was convicted by a jury in Rutherford County of possession

of marijuana, possession of valium, possession of drug paraphernalia, and

driving under the influence, second offense. She was sentenced to concurrent

terms of eleven (11) months and twenty-nine (29) days. The sentences were to

be served on supervised probation after ninety (90) days served in confinement.

The petitioner filed a motion for new trial, which was denied. The

petitioner remained on bond while she appealed to this Court. While the appeal

of petitioner’s convictions was pending, she was indicted in Sumner County for

various drug offenses. The District Attorney General of Rutherford County on

May 2, 1996, filed a motion to revoke the petitioner’s bond. A hearing was held

on May 21, 1996, and the trial court issued an order amending the conditions of

the petitioner’s release. The petitioner’s bond was raised $4,000. She was also

“placed on supervised probation,” required to remain free of illicit drugs, ordered

to submit to drug screenings, and had to comply with a 7:00 p.m. curfew. The

petitioner also alleges the “Draconian” measure of placing an electronic

monitoring device around her ankle was foisted upon her.

2 This Court subsequently affirmed the petitioner’s convictions. State v.

Kimberly Sutton Street, C.C.A. No. 01C01-9508-CC-00257, Rutherford County

(Tenn. Crim. App. filed September 19, 1996, at Nashville). The Tennessee

Supreme Court denied permission to appeal in an order filed March 3, 1997.

The petitioner subsequently filed a petition for post-conviction relief

alleging, inter alia, that the increased conditions of her bond constituted

punishment for double jeopardy purposes; therefore, she had already served her

sentence. The trial court dismissed the petition without a hearing, and the

petitioner appealed.

II.

The defendant alleges that the trial court’s modification of her bond was

made without jurisdiction and constituted punishment, causing her to “more than

serve the original sentence imposed by the trial court.” We respectfully disagree.

A.

A defendant may be admitted to bail pending appeal by the trial court

where the judgment was rendered, by this Court, or by the Tennessee Supreme

Court. Tenn. Code Ann. § 40-11-113(a)(1). Any of the above courts, judges or

justices thereof, may increase or reduce the amount of bail required pending

appellate review. Tenn. Code Ann. § 40-11-113(a)(3). If a court finds it

necessary, a defendant as a condition of release on bail may be required to

submit to supervised probation and have reasonable restrictions placed upon

her activities, movements, associations and residences. Tenn. Code Ann. § 40-

3 11-116(b)(2), (3).1

Thus, the petitioner’s contention that a trial court does not have

jurisdiction to alter or modify bail after notice of appeal is without merit. Indeed,

an application for alteration of bail is one of the few instances where both the trial

and appellate courts retain concurrent jurisdiction. Raybin, Tennessee Criminal

Practice and Procedure, § 33.104 (1985); see also Tenn. R. App. P. 8(a).

B.

We also reject the petitioner’s argument that the alteration of bail

constituted punishment for double jeopardy purposes. To be put in jeopardy, a

defendant must be “subject to ‘criminal prosecution’ and put to trial.” United

States v. Grisanti, 4 F.3d 173, 175 (2nd Cir. 1993). A bail revocation hearing

serves a regulatory function rather than a criminal function. State v. Pennington,

952 S.W.2d 420, 422 (Tenn. 1997)(citing United States v. Grisanti, supra).

Regulatory or remedial purposes do not implicate double jeopardy. Id. at 422-

23.

C.

The actions of the trial court altering conditions of the defendant’s release

were appealable to this Court in accordance with Tenn. R. App. P. 8(a). See

Tenn. Code Ann. § 40-11-144. The appropriateness of the modification could

have been reviewed at that time. The petitioner failed to avail herself of this

opportunity.

1 If a person admitted to bail on appeal is indicted for or convicted of a felony while on bail, the bail “shall be revoked.” Tenn. Code Ann. § 40-11- 113(a)(4)(emphasis added). It appears the petitioner was extended mercy by the trial court since the statute mandates revocation.

4 For the above reasons, the judgment of the trial court is AFFIRMED.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

__________________________ CURWOOD WITT, JUDGE

__________________________ LEE MOORE, SPECIAL JUDGE