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

Briefs O ctober 1, 2002

STATE OF TENNESSEE v. WI LLIAM ROY GRAY
Appeal from the Circuit Court for Madison County No. 01-513 Donald H. Allen, Judge

No. W2002-00460-CCA-R3-CD - Filed October 14, 2002

Following a bench trial, the Defendant, William Roy Gray , was found guilty of possession of drug paraphernalia, a class A misdemeanor, and resis ting arrest, a class B misdemeanor. H e received consecutive sentences of eleven months and twenty -nine days a nd si x months, respectively, to be served in jail. However, approximately two months later, the trial court entered an order allowing the Defendant to serve his sentences at home due to the D efendant’s poor health. The court revoked this order based on the Defendant failing to comply with the

condition s of his re

lease from jail and the Defendant being arrested for theft. Moreover, the court ordered that the De fendant not be given
cr edit for the p ortion of

his sente nces tha t he serv ed at his h ome. I n this appe al as of right, th e Defendant

argues that

the order of the trial court denying him credit for the time he served outside of jail serves to increase his sentence and to eff ectively puni sh him twic e for the same off ense in violatio n of the do uble

jeop ardy clau ses o f the

Unite d Stat

es an d Ten

ness ee Co nstit

ution s. We disagr ee and a ffirm the judgmen t of the tr ial cour t.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and A LAN E. G LENN , JJ., joined.

Vanessa D. K i ng, Assistant Public Defender, Jackson, Tennessee, for the appellant, William Roy Gr ay.

Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Bouc ek, Assistant Attorney Genera l; Jerry Woodall, Di strict Att

orney Genera l; and Shau

n A. Bro wn, Assist

ant Distr ict Attorn ey Genera l, for the appellee, State of Tennessee.1 The record is unclear as to pre cisel y what

healt h problems t

he Defendant

experien ce d . However, at the

revo cation hearin g, the D efend ant testified that he ha d a co lostom y while he was o ut of jail.
-2- OPINION
Following a bench trial on October 4, 2001, the Defendant was found g uilty of possession of drug paraphernalia, a c lass A misdemeanor, and resisting arrest, a class B misdemeanor . He was sentenced to eleven months and twenty- nine days and six months, respective ly. Th e trial court ordered the sentences to run consecutively, f or an effective sentence

of eighteen months to be served in the local jail. On November 30, 2001, the trial court reconsidered its sentencing order in light of the Defe ndant’s h ealth pr oblems. 1 The court ordered the Defe ndant to se

rve his se ntence a t home under the supervision of a Community Corrections offi cer. The court also ordered the Defenda nt to wear an ankle monitor and not leave his home except for health-related reasons. On Fe bruary 5, 2002, the trial court revoked this order, finding that the Defendant

violated the termsof his release by failing to ever report to the Community Corrections office, fa iling to wear an ankle monitor, and subsequently being

arrested for theft. The trial court orde red that the Defe ndant re ceive c

redit for time served in jail but not for the period while he was supposed to be serving his sentence at home. The Defendant argues in this appeal a s of righ t that by not cred iting him f

or the time

he serve d at his home, the trial court effectively punished him twice for

the same offense in violation of the double jeopardy c lauses of the United States and the Tennessee Constitutions.

We note at the outset th at there is a discr epancy in the record regarding

the Defendant’s status while he was allegedly

serving his sentence at his home pursuant to the court’s orde r on November 30, 2001. The

record is not clea

r as to whether

the Defe ndant wa s on proba

tion or in Co mmunity Correct ions. The diff

erence is not trivial, for a defendant who is serving a sentence on Commu

nity Corrections is actua

lly s erving

his sente nce in the community

“in lieu of incarceration,” while the sent ence of

a defendant who is on probation is suspended. Compare Tenn. Code Ann. § 40-36- 106(e)(1), with

Tenn. Code Ann. § 40-35-303(c). Furthermore , a defendant who has his or her Community

Corrections sentencerevoked is incarcerated to serve the term of his sentence“less any time actually ser

ved in any community-based alternative to incarcera tion.” Tenn. Code Ann. § 40- 36-106(e)(4). On the other hand, a defendant who v iolates th e terms o f his or h er proba tion shall have the suspension revoked and his or her original sentence executed. See Tenn. Code Ann. § 40- 35-310. Therefore, a defendant who is on proba tion receives no cr edit

for time s erved, but a defendant on Community Corrections does.
In its order, the trial court states that the D efendant shall “continue[ ] to serve his sentence at home.” There is no men tion in the o rder of the sente

nce bein g suspe

nded. A Co mmunity Corrections officer was assigned to monitor the Defe ndant, and the aff

idavit in support of

the arr est warrant for the Defendant states that the Defendant “has violated

the condi tions of hisCommunity Corrections sentence . . . .” However, prior to the hearing on February 4, 2002, the trial judge stated, “We’re here on a probation violation warrant.” In his forma l order, the trial judge “decre ed that the defendant’s probation be revoked.” When the trial judge issued his ruling from the b ench on February 4, 2002, he

found “th at Mr. Gr

ay has, in fa ct, viola ted the te rms of his p

robation or real ly2 We note that i f the Defendant was o n pro batio n rathe r than in c omm unity co rrectio ns while a t hom e, he wo uld

not b e entitled to hav e sente nce c redits fo r the time he wa s “releas ed.”
-3- the terms of

his sentence in this case.” Thus, it is unclear from the recor d whether the Defendant

was on probation or Community Corrections.
However, based on our review of the record, we conclude that the trial court intended to place the Defendant on

Community

Corrections status. There is no mention of suspending his sentence in t he reco rd, the Community Corrections office was given the responsibility of monitoring the Defend ant, and the trial judge clearly states in his order on November 30, 2001 that the Defendant
was to continue serving his sentence at home. Therefore, we

will consider the Defendant’s appeal as a challenge to the revoca tion of his Community Corrections sentence. 2

The Defendant argues that, by not crediting him with the time that he served in his home, the trial court effectively

gave him another sentence, and, in so doing , v iolated his p rotection from double jeopardy g

uaranteed by

the United States and Tennessee Constitutions. The double jeopardy clauses of the Fifth Amendmentto the United States Constitution and Article I, section 10 of the Tennessee Constitution both protec t again st a second prosecution for the same offense a fter conviction, a second

prosecu tion for th e same of fense after an acquitta l, and multi

ple punish

ments for the same offense

. See State v. Mounce , 859 S.W.2d 319, 321 (Tenn. 1993). Tennessee Code Annotated section 40-36-106(e)(4) states that when a defendant’s Community Corrections sentence is revoke d, he or she shall receive credit for “ any time actually served in any community -bas e d alternative to incarceration.” (e mphasis ad ded). Therefor e, if the Defend ant had a

ctually served t ime in the Community Corrections progra m, he would be entitled to credit for that time served.
However, the rec ord ref

lects tha t the Def endant ne

ver act ually se rved any

time in the Community

Correct ions prog ram. Clint M

urley , the cas e offic er with the Community Corrections program who was assig

ned to supe

rvise the Defendant, testified that the Defendant neve r contacted the Communit

y Corre ctions office. Mr. Murley tried to contact the Defendant at his mother’s address , where he was or

dered to serve his sentence. Mr. Murley spoke with

three in dividuals , all of whom said that they had not see n the Defendant

and did no t know whe

re he wa s. Furthermore, the Defendant was never fitted with an an kle monitor, which the trial court ordered him to wear while he se rv ed hi s s en te nc e a t h om e. Fi na ll y, the Defendant clearly did not remain at home, as he
was arrested

on January 13, 2002, for shoplifting f rom a grocery

store. The facts demonstrate that the Defendant never bega

n the Community Corrections progr am and therefore did not

actually serve time in a commu

nity -based a

lternati ve to inca

rcera tion pursu ant t o Tennes see Code Annotated section 40-36-10 6(e)(4 ). In an analo gous ca se, a pan el of this C ourt aff

irmed a tr ial c ourt’s o rder giving the defendant

credit for day s successfully ser ved on the Community Corrections prog ram, but notfor those

day s where

the defe ndant wa s conside

red in violation status because he had absconded from supervision. See Tray D. Tur ner v. State , No. 03C01-9902-CR-00088, 1999 Tenn. Crim. App. LEXIS 1219, at *3 (Knoxville, December 1, 1999). While there is no proof in the record that t he Defendant

in this case “abscond ed” from supervision, we find that because he f ailed to begin the Community

Corrections program, did not contact its office, did not wear an ankle monitor as order ed3 We note that i n thi s case, the t rial court simply ordered that t he Defendant s erve t he remain der of hi s sent ence in jail ; it did not i mpose a sente nce that exceeded the lengt

h of t he origi nal se ntence. Therefore, the t rial court was under

no duty t o conduct a sentencing heari ng pursuant to the Tennessee Criminal Sent encing Reform Act o f 198 9. See State v. Erv in , 939 S.W .2d 581, 583 (Tenn. Crim. App. 199 6); Tenn. Code A nn. §§ 40-35-209 (a) and -210(a) through (e).
-4- by the trial court, and did not remain at home where he wa s to serve his sente nce, he “actua lly served” no time in Community Corrections. Therefore , the trial court did not err b y de nyi ng him credit for the time spent out of jail, and the Defend ant was n ot punishe d twice f or the sa me offe nse in violation of the dou

ble jeopa rdy clauses of the Un

ited State s and Ten

nessee C onstitution s. This issue is without meri

t.

The Defendant also pre s ents an a rgumen t that the a

ction of th

e trial c ourt in re

voking h is Community

Corrections sentence violated due process. He c ontends that because he violated a court order, he was entitled to a contempt of court hear ing, rather than what the trial court ref erred to as
a pr obatio n revocation hearing. Howeve r, the action taken by

the trial court after the hearing on February 4, 2002, op erated

to revoke the Defendant’s Community Corrections sentence, not to levy additional punishmentagainst him for contempt of court. As we have a lready discusse d, the fa

cts indicate that the trial court ordered the Defendant to serve a

sentenc e on Commun

ity C orrect

ions. Alth ough the trial judge casually used the term

“probation” when describing the Defend ant’s sta

tus, other factor s sugg est that he

was, in fact, to serve a Community Corrections sentence. When a trial court revokesa Community

Correct ions sente nce, the court ha s authority

to resentence the accused. Tennessee Code Annotatedsection 4 0-36-106 (e)(4) providesin pertine nt part, “The court shall a

lso possess the power

to revoke the sentence imposed at any time due to the conduct of the defendant

. . . .” 3 Before the trial court revoked the Defendant’s Community Corrections sentence, it conducted
a hearing at which t

h e Defend ant was given the opportunity to hear, question, and challenge the circumstances surrounding the alleged violations of his Community Corrections sentence, he was allowed to present evidence on his own be half, an d he had th

e opportu nity to confr ont and cr

ossexamine the witne ss who testified against him. The Defendant has fa iled to show how the hearing held by the trial court de

nied him the right to due process. Accordingly , this issue is without merit.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WEL

LES, JUDGE