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State v. Steen9/1/2000
The sole issue in this appeal is whether the defendant was eligible for work release and/or periodic confinement prior to serving the mandatory minimum period of incarceration for second offense DUI. The trial court concluded that the defendant was ineligible for work release or periodic confinement prior to serving the mandatory minimum period of incarceration, and we affirm that judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
OPINION
PROCEDURAL BACKGROUND
Defendant pled guilty to second offense DUI. He received the minimum sentence of eleven months and twenty-nine days with all but forty-five days suspended. See Tenn. Code Ann. § 55-10-403(a)(1). Defendant sought work release or periodic confinement relating to the forty-five days of confinement. The trial court concluded that it was "without the power to grant the relief requested." We affirm the judgment of the trial court.
PERIODIC CONFINEMENT
Defendant contends the trial court erred in refusing to consider his request for periodic confinement during the mandatory minimum period of incarceration. This court has previously concluded that the mandatory minimum period of incarceration for DUI must be served without interruption by periodic confinement. State v. Gurley, 691 S.W.2d 562, 563 (Tenn. Crim. App. 1984), perm. to app. denied (Tenn. 1985); Jackie Joyce Brown v. Tim Guider, C.C.A. No. 03C01-9310-CR-00346, Loudon County (Tenn. Crim. App. filed April 22, 1994, at Knoxville). We see no reason to deviate from these holdings. This issue is without merit.
WORK RELEASE
Defendant next contends the trial court erred in refusing to consider him for work release during the mandatory minimum period of incarceration. We respectfully disagree.
This court has previously held that a defendant is not eligible for work release for second offense DUI until the completion "day-for-day" of the mandatory forty-five days of confinement. State v. Lowe, 661 S.W.2d 701, 703 (Tenn. Crim. App. 1983). However, in 1995 legislation was enacted so as to authorize those convicted of second offense DUI to secure work release under certain conditions. See Tenn. Code Ann. § 41-2-128(c)(Supp. 1995). Nevertheless, we conclude this statute has no application to the case before us.
This statute is limited in application. Tenn. Code Ann. § 41-2-128(a) expressly provides that this work release program is for misdemeanants sentenced to the county "workhouse." The statute further provides that "the court of general sessions may, upon application of the sheriff, enter a like order for the same purpose for jail prisoners." Id. The defendant was not sentenced to the county "workhouse," but was sentenced to the county jail. The defendant was not sentenced to the county jail by the general sessions court, but was sentenced by the criminal court. It would, therefore, appear that the defendant is ineligible for work release under Tenn. Code Ann. § 41-2-128. See Tenn. Atty. Gen. Op. 97-021 (March 5, 1997)(opining that Tenn. Code Ann. § 41-2-128 does not apply to second offense DUI offenders sentenced by the criminal court to the county jail).
Defendant argues that his work release is authorized by Tenn. Code Ann. § 41-2-129(d) which provides as follows:
As an alternative to the procedures described in subsections (a), (b) and (c), the sentencing court may place a prisoner on work release subject to the terms and conditions that the sheriff and the sentencing court may agree upon.
However, both Tenn. Code Ann. §§ 41-2-128 and 41-2-129 were originally enacted at the same time and did not
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