### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 6, 2002 STATE O F TENN ESSEE v. WENDE LL S. L EWIS Direct Appeal from the Criminal Court for Shelby County No. 00-04909 James C. Beasley, Jr., Judge

No. W2001-03098-CCA-R3-CD - Filed F ebruary 4, 2003

When the defe

ndant’s s tatus on c ommunity correc tions was r

evoked, the trial

court sho uld have given the defendant credit for the time served in the c ommunity corrections prog ram. We, therefore, revers e and modi fy

the judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Modified J OHN E VERE TT W IL LI AM S , J., deliver ed the opinion of the court, in which J OSEPH M. T IPTON and T HOM AS T. W OODA LL , JJ., joined. A C Wharton, Jr., Public Defender; Garland Ergüden a nd Robert Ha

ye s Gowen, Assistant

Public Defend ers, for the appe llant, Wend

ell S. L ewis. Paul G. Summers, Attorney Gene ral andReporter; Helena Walton Yarbrough, Assistant Attorney Genera l; William L . Gibbons, District A ttorney Genera l; and Paul F. Goodman, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION On September 26, 2000, the defendant, Wend ell S. Lewis, pled guilty to driving while a habitual motor vehicle off ender and was late

r sentenced to co mmunity corrections for t

wo y ears. Almost a yea r later, the defendant’s status on community c orrections was revoked. At the revocation hearin g, the trial

court found that the defen dant had n ot complie d with the c onditions o f his community

corrections sentence and ordere d the de fendant to serve a two-y ear sen tence in the count y workhous e, with no

credit f or time se rved in th e community c orrect

ions prog ram. The defe nd ant timely appeals the tria l court’s denial of credit for time served in the community

corrections prog ram. Spe cifically, the de fendant is seeking three hundred sixty -three-2-

(363) day s credit f

rom Octob er 20, 20 00, the da te the Orde

r was en tered pl acing h

imin communit

y corrections status, until October 18, 2001, the date the revocation petition was filed. Analysis The State ag

rees wit h the def endant’ s position, noting th e gran ting of s uch cre dit

is mandated by statute and is not discretionary with the trial court. We agree. Upon revoca

tion of a c ommunity

corrections s entence, t he trial c ourt has t he author ity t o modify the sentence, not deny

credit for time actually

served in the community cor rections progra

m, no matter how lackluster or unsuccessful the defenda nt’s performance. Tenn. Code Ann. § 40-36- 106(e)(4). This Court a

pplied thisprovision

and held that a defenda nt must rec eive cr

edit for t he full period he was in

community

correc tions until

the filing of a revocation proceeding. State v. Victor Lofton , No. 02C 01- 961 1-C C-0 042 7, 1 997 Ten n. C rim . Ap p. LE XIS 985, at *4 (Tenn. Crim. App. Oct. 2, 19 97 , a t J ac ks on ). Ac co rd in gl y, the defendant is entitled to three hundred sixty- three (363) day s credit. CONCLUSION The judgment of the trial court is reversed and modified to re flect a sentenc e of two ( 2) y ears, witht hree hundred

sixty- three ( 363) day s credit f or the time

the defe ndant wa s in the co mmunity correc tions prog

ram.



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_ JOHN EVERETT WI LL IAMS, JUDG E