### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 12, 2000

Session STATE OF TENNESSEE v. DONALD CRAIG MILLER Direct Appeal from the Criminal Court for Davidson County

No. 97-D-2143 Seth Norman, Judge

No. M2000-00962-CCA-R3-CD - Filed January 18, 2001

The Defendant, Donald Craig Miller, pled guilty to bu rglary, Class D felony, pursuant to a negotiated

plea agreement wherein he was to receive a sentence of four (4) years, with the manner of the service of the sentence to be determined by the trial court following the sentencing hearing. At the sentencing hearing, the trial court accepted the four-year sentence, but orderedthree and onehal f years incarceration, followed by service of four years in Community Corrections in a “s plit

confinement”

sentence. Subsequently, the Defendant filed a “Motion for Clarification of Judgment Order” which was denied by the trial court following a hearing. The Defendant fi led a notice o f appeal. We hold that th

is mat ter should be treated as a petition for common law writ of certiorari r ather than a Rule 3, T.R.A.P. appeal, and reverse the judgment of the trial court and remand fo r further procee

dings. Tenn. R. App. P. 3 Appeal as of Right; Designa

ted as Common Law Wr it of Certiorar

i, Tenn. Code Ann. § 27-8-101; Judgment of the Criminal Court Reversed and Remanded T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined. C. Alex Meacham, LaVergne, Tennessee, for the appellant, Donald Craig Miller. Paul G. Summers, Atto

rney Gen eral and Reporter; Marvin E. Clements, Jr., Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Lisa Naylor, Assistant DistrictAttorney General; and

Jim Milam, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION OnJanuary 15, 1998, the Defendant, Donald Craig Miller, signed a “Petition to Enter Plea of Guilty” wherein it is reflected that he had reached a negotiated plea agreement with the State to plead guilty to Class D felony burglary and receive a sentence of four (4) years as a 35% Range II offender, “with sentencing hearing.” It is apparent from this appellate record that the trial court was-2-

to determine the manner of service of the sentence. This petition to accept guilty plea was signed by the defendant’s attorney and the assistant district attorney in addition to the Defendant. The trial court entered an orde

r the same date r

eflecting that the

plea of guilty was a

ccepted, and spe

cifically ordered that the “petition filed herein be, and the same is, in all respects, granted.” At the conclusion o

f the sentencing h

earing, the tria

l court stated as f

ollows: THE COURT: General, I’ll te ll you what I’ve go

t in mind. I’ve got in

mind, requiring him to serve thr ee and a h alf years as a range one standard offender at thirty perc ent, s plit confine it; putting him on Community Corrections after that for a period of four years, after th

at. After the prosecutor po

inted out that the a

greement was for a Rang e II sentence, the trial court clarified

the ruling as follow

s: THE COURT: Three and a half years as a rang

e two, and then re

quire him to be on Community Correc tions. That will

keep him under our thumb for four years, and

I can give him four more years if he goes and breaks in

another place. That’s the judgment of the Court. The judgment order entered on February 25, 1998 reflects that Defendant pled guilty and was sentenced as a multiple thirty-f

ive percent Rang

e II offender a

nd that his sentenc

e was tobe served as three (3) years, six (6) months at the CCA Workhouse in Davidson Cou nty a nd placement on Community Corrections for four (4) years “after serving three and a half yrs. [sic] in jail.” As a result of at least two petitions being filed to r evoke Commun ity Corrections, the Defendant,

through counsel, filed on January 6, 2000, his “Motion for Clarification of Judgment Order.” In this pleading, D efendant reque

sted the court to c

larif y the judgment order entered February 25, 1998, and for a “correction of same as may be necessary.” Defendant alleged that the order was being “erroneously interpreted.” In essence, the Defendant, through counsel, argued at the hearing that

the sentence was being treated as a seven-and-one-half-year se ntence rather than

a four-year sentence which he agreed to accept in the negotiated plea a greement. The following colloquy occurred between the trial court and defense counse l during the hearing on the “Motion for Clarification of Judgment Order:” THE COURT: Now, you said three and a half years, three and a half years as a range two offe nd er and then require him to be on Community

Corrections. All r

igh t. Has he served his three and a half year

s?-3-

MR. MEACHAM: Well, he flattened the four years, according to the good time they gave him or wh

atever how they d

o that. THE COURT: And in fact in this

court he was to

serve three and

a half years and then he was on Community Corrections for four years, is what I gave to him. MR. MEACHAM: Well, Your Honor, that’s not what you r statement said

there. He will be in . . . THE COURT: Three and a half years as a range t wo offender. And

then require him to be o

n Community Correcti

ons. MR. MEACHAM: No, sir. Are you looking at the transcript or are you looking at the order? THE COURT: I’m looking at the transcript, just as hard as I can. MR. MEACHAM: Well, Your Honor . . . THE COURT: Three and a half years as a rang

e two, and then re

quire him to be on Community Corre

ctions. MR. MEACHAM: Yes, sir. THE COURT: That’s what it says

. MR. MEACHAM: So that will make, ke ep him under our thumb for four years. THE COURT: Yes, sir. MR. MEACHAM: S o t he most he can be o n Community Correcti

ons would

be six months, after the three and a half . . . THE COURT: The way I -- he’s on Community Correc tions in this

court for f our years, and that’ s it. He doesn’t fla tten my se

ntence. I puthim on Community Corrections. He can go out there and serve his time but he’s not fla ttened. He is on Comm

unity Corrections here and that’s all there is to it. Period. And I hav e two mor e violations on him since the last one, I believe.-4- One dated fifteen De

cember and one d

ated fiv e J anuary. Now, as far

as I’m concerned we’re here to hear two Community

Corrections viola

tions. And I can in

c rease his sentenced another four ye

ars i f I feel like doing it. Or if the facts justify it, no

t if I feel like doi

ng it. Now, are you rea

dy to go forward on

it, Mr. Meacham? MR. MEACHAM: Your Honor please, I think according to m y -- th e interpretation

here that you ’re not agreeing with but I think I’mright, is, and all of us must thi nk we are right when we argue our client’s case, but . . . THE COURT: That’s why we hav e courts, Mr. Mea

cham. MR. MEACHAM: Yes, sir. THE COURT: Usually the defense thinks they’ re right and the State thinks they’re right. And somebody’s got to decide it. And I ’ve just decided it. MR. MEACHAM: He’s -- Your Honor please, this, the way this is being figured for him to be on Community Corrections would be seven and a half years that he would be tot aled, when he ag

reed toserve in his plea agree

ment four years,

total. THE COURT: The Community Cor rections st atute says I can i

ncrease his sentence at anytime I feel like it , is what the Community Corrections statu

te says. Now, I’m telling you right now that we are here to hear the se violations of Community Corrections. I’m either g oin g to hear them tod ay or I will continue them to next week if you want to get ready. But I am going to try him on aviolation -- two violations of Community

Corrections. A nd if I find he has violated the te rms and conditions of h is Community Correct

ions I ca n incarcerate

him or I can increase his sentence. And that’s where we are. Now, I can’t put it

any plainer than t

hat.-5-

MR. MEACHAM: Yes, sir. Well, Your Honor, he was let out of theCommunity

Corrections -- not the Community Co rrections, butthe CPA-- CCA, in July as having ser ved all of the time h

e needed to serve there. And he did not - - they did not tell him, and they, I believe Community Corrections admitted when we had a prior hearin g that he was, on his violation of Community Corrections,

they just said, well, he’d

been in jail and it was to be time served. So they let him -- t hey settled that thing that way. And then

later I filed this. But he, uh, I believe they said Ms. Sanders, admitted they had notcontacted CCA about him being o n Community Corrections and so there was not -- that was in October

after he left in July before they even . . . THE COURT: I’mgoing to continue the matt er one week and I will hear it one week from today o n the violation of Com mu ni ty Corrections. That’s it, period. It’s continued one week. It will be reset next week to be heard on two violations of

Co mmunity Corrections. One week. Initially we note that Rule 3 o

f the Tennessee

Rules of Appellate

Procedure does not

provide for an appeal as of right from the denial of a “Motion for Clarification of Judgment Order.” Rather thandismissing this

appeal, however, we

have chosen to tr

eat it as a petition

for common law wr

it of certiorari pursuant to Tennessee Code Annotated section 27-8-101. See also State v. Leath , 977 S.W.2d 132 (Tenn. Crim. App. 1998). Inits brief on appeal, the State concedes that the terms of the negotiated plea agree m ent limitedthe defendant’s total sentence to four (4) years, and that the trial court sentenced defe ndant to a total sentence of seven (7) years and six (6) months. The State further acknowledges that the sentence structure requiring f our ( 4) additional years in the Community Corrections program violated the plea agreement negotiated between the Defendant and the State. The State also cor rectly points out that the trial court imposed a spl it-confinement se

ntence which is

unauthorized by law. As noted by the State,

the trial court wa

s legally authoriz

ed to impose

a s entence of Commun

ity Corrections with a term of conf inement. Tenn. Cod

e Ann. §§ 40-36-10

6(e)(1); 40-36-3 02(b); 40-35- 306. However, split-confinement with an initial term of incarceration in excess of one year is not authorized

by statute. Tenn. Code Ann. § 40-35-306(a); State v. Jimmy D. Johnson , Blount County, No. 03C01-9602-CC-00062 (Tenn. Crim. App., filed October 16 , 1997, at Knoxville ); State v. Carol L. Hughes , Dickson County, No. 01C01-9903 -CC-0 0097 (Tenn. Crim. App., filed January 25, 2000, at Nashville).-6-

Pursuant to the negotia

ted plea agreem

ent accepted by

the trial court in i

ts order the date Defendant

entered his

plea of guilty, the maximum sentence to be imposed upon Defendant was four years. The maximum amount of time of incarceration for a sentence of split-confinement as ordered by the trial court was one year. It is indicated in the recor d that the Defendant served much more thanone year in the Davidson County Workhouse. As stated above, the four-year s entence could be ordered

to be served in the Community Corrections program, with split-confinement, again, not to exceed one year incarceration. CONCLUSION It is clear from the appellate record that the jud gment o rder entered February 25, 1998 imposed an unauthorized and unlawful sentence, i.e. incarceration in excess of oneyear on a splitconfinement

sentence. At the hearing on Defendant’s “Motion to Clarify Judgment Order,” the trial court declined to rect

ify the situation pr

esented. Accor

dingly, this matter i

s treated as a

petition for writ of certiorari and the order of the trial court in denying the “Motion to Clarify Judgment Order” is reversed. We hereby amend the judgment to reflect a sentence of four (4) ye ars as a Range I I, 35% offender with the sentence to be served in the Comm unity Corrections program, including a “split-confineme

nt” service of the s en tence with one ye ar incarcera

tion in the Davidson

County Workhouse. Taking the cle ar intent of the trial court in deciding the manner of service of the sentence, along with the dictat es of the ap plicable statutes, this is the only sentence that could be imposed upon Defendant.

It may well be that

the Defendant ha

s served most, if

not all, of the fouryear sentence at the time this opinion is filed. However, from the record present ed on appeal, we are unable to make that determination, and in any event tha t is a determination to be made by the Department

of Correction. Th

is matter is remand

ed to th e trial court for any other proceedings necessary consistent with this opinion.

____________________________________ THOMAS T. WOODALL, JUDGE