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State v. Davis5/5/1999
igible for community corrections:
"(1) Persons who, without this option, would be incarcerated in a correctional institution; "(2) Persons who are convicted of . . . drug/alcohol-related felony offenses . . . .; "(3) Persons who are convicted of nonviolent felony offenses; "(4) Persons who are convicted of felony offenses in which the use or possession of a weapon was not involved; "(5) Persons who do not demonstrate a present or past pattern of behavior indicating violence; "(6) Persons who do not demonstrate a pattern of committing violent offenses; and "Persons who are sentenced to incarceration or on escape at the time of consideration will not be eligible." Tenn. Code Ann. § 40-36-106(a).
The record reveals that in sentencing the defendant, the trial court stated as follows:
"I think he probably is an appropriate candidate to serve a time in jail and the rest of it on Community Corrections, but according to these cases that I read, State vs. Keel and the State vs. Henry Smith, recent cases, and they seem to say that he's not, that the legislature has already ruled that that's not a possibility. So, I'm not going to order it in the face of these higher court decisions saying you can't do it. I'm not going to do it. ". . . . "But the way these read, it's pretty clear to me. I don't think there's anything else to do. But as far as the number of years, I just -- looking at this case and the evidence that I've heard and the enhancing factors, I don't think an argument can be made that's it a minimum eight-year sentence."
The record shows that the trial court believed the defendant to be ineligible for community corrections based upon the length of the defendant's sentence. As the defendant argues and the state concedes, this is incorrect. Unlike the probation statute, subsection (a) of Tenn. Code Ann. § 40-36-106 does not specify a maximum sentence length over which a defendant would be precluded from receiving community corrections. See also, State v. Lanny Crowe, No. 01C01-9503-CC-00064, Wayne County, slip op. at 2, (Tenn. Crim. App. July 6, 1995) ("An accused who meets the minimum criteria set forth in subsection (a) of Tenn. Code Ann. § 40-36-106 is eligible for sentencing pursuant to the Act regardless of the length of the sentence imposed by the trial court. Neither the Act nor any other statute makes the length of the accused's sentence a criteria for eligibility"). Because the trial court erroneously believed the defendant to be ineligible for community corrections, we remand the case to the trial court for a determination of whether the defendant should receive community corrections, confinement, or a combination thereof.
In consideration of the foregoing and the record as a whole, we affirm the convictions and the nine-year sentences. We remand the case to the trial court for consideration of whether the defendant should receive community corrections.
Joseph M. Tipton, Judge
CONCUR:
John H. Peay, Judge David G. Hayes, Judge
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