Summary
stating that “ Tennessee Code Annotated section 40–36–106(e) supports the proposition that [a defendant] is not entitled to credit for time periods in which he was in an ‘absconded’ status from the Community Corrections Program”
Summary of this case from State v. McNackOpinion
No. 01C01-9608-CC-00335.
September 30, 1997.
DICKSON COUNTY, HON. ALLEN W. WALLACE, JUDGE.
REVERSED AND REMANDED
For the Appellant:
Shipp R. Weems, District Public Defender, Carey J. Thompson, Assistant Public Defender.
For the Appellee:
John Knox Walkup, Attorney General and Reporter, Janis L. Turner, Assistant Attorney General, Dan Mitchum Alsobrooks, District Attorney General, Suzanne M. Lockert, Assistant District Attorney.
OPINION
The appellant, Robert Moore, pled guilty in the Circuit Court of Dickson County to twenty (20) counts of passing forged prescriptions. On July 16, 1993, the trial court ordered appellant to serve two (2) years on each count in community corrections. Three counts were ordered to be served consecutively for an effective sentence of six (6) years. In January of 1996, after appellant violated three rules of the program, his case officer obtained an arrest warrant for violating community corrections. The trial court held a hearing and revoked appellant's alternative sentence. It ordered appellant to serve the remainder of his sentence in the Department of Correction.
The judgment forms conflict on the length of appellant's sentence. See discussion infra page 3.
On appeal, appellant does not contest the revocation of his alternative sentence. He does challenge, however, the trial court's refusal to grant him credit for time served while in the community corrections program. Finding the trial court in error in denying appellant such credit, we reverse that portion of the trial court's judgment and remand for a new sentencing hearing.
When revoking appellant's community corrections sentence, the trial court stated:
I'm not going to bump you up in the range. I probably could, but I'm not going to do it. I'm going to violate your Community Corrections and let you go to the Tennessee Department of Corrections [sic] and serve your time. You will not get credit for any time you've been on Community Corrections except the time you actually spent in jail and I want the order to reflect that, Ms. Lockert.
Such a denial is clearly contrary to the statutory mandate. The Community Corrections Act of 1985 provides:
The court shall also possess the power to revoke the sentence imposed at any time due to the conduct of the defendant or the termination or modification of the program to which the defendant has been sentenced, and the court may resentence the defendant to any appropriate sentencing alternative, including incarceration, for any period of time up to the maximum sentence provided for the offense committed, less any time actually served in any community-based alternative to incarceration.
Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 1996) (emphasis added). Under the directive of this statute, it was error for the trial court to deny appellant credit for the time he had already served in the community corrections program. See State v. Reginald Searcy, No. 01C01-9205-CC-00153 (Tenn.Crim.App. at Nashville, November 12, 1992); State v. Randy A. Thomas, No. 01C01-9102-CR-00042 (Tenn.Crim.App. at Nashville, December 5, 1991).
The State argues that the trial court possessed the authority to increase appellant's sentence and that the denial of time served essentially accomplishes the same purpose, i.e. it increases the time he will spend incarcerated. As a result, it argues that the trial court's error was harmless. We disagree. Had the trial court intended to increase appellant's sentence, a new sentencing hearing would have been necessary with the trial court following the proper statutory procedure, considering enhancing and mitigating factors to justify any increased sentence. See State v. Ervin, 939 S.W.2d 581, 583 (Tenn.Crim.App. 1996). Denying an appellant credit for time served is not a permissible substitute for this procedure. Because the trial court has authority to increase appellant's sentence and appellant must be given credit for time he has already served in community corrections, a new sentencing hearing is necessary so that the trial court may properly exercise its authority under the statute.See Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 1996).
Although not raised by appellant, another error appears on the face of the record. The State and the appellant apparently agreed at the revocation hearing that appellant was serving a six (6) year sentence. Other documents in the record also reflect such sentence. However, the judgment forms conflict with that sentence length. For example, Count I indicates it is consecutive to Counts II and III. Count II indicates that it is consecutive to Counts I and III. In contrast, the judgment form for Count III reflects that it is concurrent to Counts I and II. Based upon this information, appellant's effective sentence appears to be four (4) years. We note that appellant did not object to the characterization of his sentence as six (6) years at the revocation hearing and his brief is void of any reference to the sentence length. After conducting a new sentencing hearing, the trial court should ensure the correct sentence length is clearly indicated on the judgment forms.
Because it is contrary to statutory mandate, we reverse the portion of the trial court's order denying appellant credit for time served in community corrections. This cause is remanded to the trial court for a new sentencing hearing in conformity with the Sentencing Act. See Tenn. Code Ann. § 40-35-210 (Supp. 1996). Upon the order of a new sentence, appellant is entitled to credit for the time he served in community corrections.
_______________________________ WILLIAM M. BARKER, JUDGE.
CONCUR:
____________________________ JOE B. JONES, PRESIDING JUDGE.
____________________________ THOMAS T. WOODALL, JUDGE.
SEPARATE OPINION CONCURRING IN PART AND DISSENTING IN PART
I concur in all parts of Judge Barker's well-written opinion, except as to that portion which remands this case to the trial court for a new sentencing hearing, to which part I respectfully dissent. The Defendant in this case did not dispute the trial court's termination of Defendant's placement in the Community Corrections Program. The sole issue on appeal, as specifically phrased by the Defendant, is "can the trial court deny the Defendant credit for time actually served in a community based alternative to incarceration upon revocation of that sentence?"
In the trial court, the State did not request the court to increase Defendant's sentence, which the trial court was entitled to do upon a full sentencing hearing after considering enhancement and mitigating factors. Instead, the Assistant District Attorney General succinctly set forth her request as follows: "The State's position is just go ahead and violate him. I like the way the Judge does in these situations, you know, maybe put him in County Jail for about a year and put him back on Community Corrections and see what he will do."
On appeal, the State did not submit in a separate issue that the trial court erred by failing to increase Defendant's sentence. It is correct that the State does not need to file a separate notice of appeal in order to raise a sentencing issue when the Defendant has appealed to this court. State v. Russell, 800 S.W.2d 169, 170-72 (Tenn. 1990). However, under applicable appellate rules, the State must still specify an issue for appellate review, submit supporting argument, and identify appropriate relief. State v. Hayes, 894 S.W.2d 298, 300 (Tenn.Crim.App. 1994).
The trial court could have considered an increase in the Defendant's sentence, but declined to do so. The State did not urge in the trial court or in this court that the sentence should be increased. Mentioned in this record, and conceded to by the Defendant, is the fact that he is not entitled to credit for time in which he may have been in an "absconded" status while sentenced to the Community Corrections Program. I agree that the language of Tennessee Code Annotated section 40-36-106(e)(4) supports the proposition that Defendant is not entitled to credit for time periods in which he was in an "absconded" status from the Community Corrections Program.
Since the issue of whether or not to increase Defendant's sentence was not addressed on appeal, I am of the opinion that this case should be remanded to the trial court for a new hearing limited to the sole purpose of determining the amount of credit to which Defendant is entitled by statute for time actually served in the Community Corrections Program.
____________________________________ THOMAS T. WOODALL, Judge.