In addition, we note that other states have found no violation of separation of powers in statutes that mandate certain sentences. See State v. Waits, 163 Ariz. 216, 786 P.2d 1067, 1071 (1989); State v. Lowe, 661 S.W.2d 701, 703 (Tenn. 1983). In Waits, the defendant argued that the AZ statute violated the constitution by mandating a single sentence for a violation of the statute, thereby divesting the judiciary of its constitutionally granted discretion with respect to imposing sentence for a criminal offense.
Tavera also argues that subsection (a)(3) is controlling because it contains a more specific directive than found in subsection (a)(1). He cites to this court's decision in State v. Lowe, 661 S.W.2d 701 (Tenn. Crim. App. 1983), in support of this principle of statutory construction. The court in Lowe quoted the following passage from State v. Safley:
Our review is subject to the provisions of T.C.A. ยง 55-10-403, which contains penalty provisions for those convicted for driving while intoxicated. State v. Lowe, 661 S.W.2d 701 (Tenn. Crim. App. 1983). After considering this case de novo and the facts above summarized, we conclude that the jail sentence of 11 months and 29 days is appropriate for deterrent purposes.
Thus, by virtue of the foregoing, a D.U.I. third offender must serve his minimum mandatory sentence of 120 days "day for day," and as we interpret the statute, this means "day for day" in succession, without interruption by periodic confinement as would be occasioned by week-end or work-release sentences. We considered in State v. Lowe, 661 S.W.2d 701 (Tenn.Cr.App. 1983) practically the same issue that is before us in the present case. The only significant difference is that in Lowe we were concerned with a D.U.I. second offender rather than a third offender.
Furthermore, this Court has previously held that probation is a privilege, not a right. State v. Correll, 626 S.W.2d 699 (Tenn. 1982). Work release is a form of probation and is, therefore, a privilege and not a right. State v. Lowe, 661 S.W.2d 701 (Tenn. Crim. App. 1983). Accordingly, we will apply the rational basis test in analyzing the defendant's equal protection challenge.
1994). While work release has been referred to as an "alternative sentence," T.C.A. ยง 40-35-104(c)(7), and a "form of probation," see, e.g., State v. Lowe, 661 S.W.3d 701, 703 (Tenn. Crim. App. 1983), this court has clarified more recently that "work release is not probation" but, rather, a form of "incarceration," because it "occurs when a defendant, who is serving a sentence of confinement, is temporarily released from confinement and must report back to jail each day" and eligibility is "governed by either the administrative authority of the jail or the sentencing court." State v. Terrance Dwain Norton, No. M2004-02791-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1170, at **6-7 (Tenn.
And more importantly, a specific provision of a statute controls a general provision which would otherwise include that mentioned in the specific provision. State v. Lowe, 661 S.W.2d 701 at 703 (Tenn.Crim.App. 1983). . . . .
As such, the Appellant's interchangeable use of the terms "work release" and probation is incorrect. We note that while work release has been referred to as a "form of probation," State v. Lowe, 661 S.W.2d 701, 703 (Tenn.Crim.App. 1983), work release does not fall within the meaning of probation as defined in Tennessee Code Annotated section 40-35-303 (2003). Work release occurs when a defendant, who is serving a sentence of confinement, is temporarily released from confinement and must report back to jail each day. Work release is governed by either the administrative authority of the jail or the sentencing court. As work release is not probation, all arguments asserted by the Appellant that the terms of his probation unreasonably restrict his "employment and method of livelihood" fail.
Nothing is found in the Criminal Sentencing Reform Act of 1989 to indicate that the legislature intended to modify its decision that those offenders convicted under ยง 55-10-616 under normal circumstances should not be eligible for a suspended sentence or fine. Finally, in concluding that the 1989 Sentencing Act does not modify the probation prohibition in the MVHO Act, the opinion relies on State v. Lowe, 661 S.W.2d 701 (Tenn.Crim.App. 1983), in which this court noted that when general and special provisions exist, the special provision will be deemed an exception to the general provision and will not be controlled by the general provision. The opinion makes no mention of the 1984 opinion nor explains how the 1989 Act revives the provision already repealed by the 1982 Act.
Subdivision (3) is a specific subdivision which deals exclusively with child rapists and multiple rapists and it controls over the provisions of subdivisions (1) and (2) which appear to authorize up to 15% reduction credits for a number of offenders including child rapists. See,Strader v. United Family Life Ins. Co., 218 Tenn. 411, 403 S.W.2d 765 (1966); Byrd v. Bradley, 913 S.W.2d 181, 183 (Tenn.App. 1995); Brockner v. Estes, 698 S.W.2d 637 (Tenn.App. 1985); State v. Lowe, 661 S.W.2d 701, 703 (Tenn.Crim.App. 1983); State v. Nelson, 577 S.W.2d 465, 466 (Tenn.Crim.App. 1978). (All holding that where one statute conflicts with another, or where portions of a single statute conflict, the more specific provisions control over the general provisions).