FILED

August 5, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

 AT JACKSON

 JUNE 1997 SESSION

 )

STATE OF TENNESSEE, ) 

) C.C.A. No. 02C01-9607-CR-00228

Appellee, )

) Shelby County

V. )

) Honorable Arthur T. Bennett, Judge

JONATHAN ASKEW, ) 

) (Sentencing)

Appellant. )

)

FOR THE APPELLANT: FOR THE APPELLEE:

Gerald Green Charles W. Burson

Attorney at Law Attorney General & Reporter 

301 Washington, Suite 302

Memphis, TN 38103 Deborah A. Tullis

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

William L. Gibbons

District Attorney General

Perry Hayes

Assistant District Attorney General

Criminal Justice Complex

201 Poplar, Suite 301

Memphis, TN 38103

OPINION FILED: ___________________

REVERSED AND REMANDED

PAUL G. SUMMERS,

Judge
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O P I N I O N

 

As part of a negotiated plea agreement, the appellant, Jonathan Askew,

pled guilty to driving while under the influence and to driving while his license was

revoked, canceled, or suspended. This was the appellant’s second conviction for

driving while under the influence, which is a violation of Tenn. Code Ann. § 55-10-

401 (1993). Although the trial court found the appellant eligible for the work

release program, it denied his application to the program because his employer,

the State of Tennessee, refused to send his paycheck directly to the Shelby

County Correctional Center Work Release Program. We respectfully reverse the

judgment of the trial court and remand for reconsideration of the application.

The appellant argues that Tenn. Code Ann. § 41-2-128(c)(1)(C) (Supp.

1994) requires only that “[t]he defendant agree[] to defray, to the best of the

defendant’s ability, the cost of incarceration and treatment,” not that the

appellant’s payroll check be sent directly to the work release office. He, therefore,

contends that the employer agreement required for the work release program is

more stringent than the statute itself. He further argues that Tenn. Code Ann. §

41-2-129 (Supp. 1994) provides that even the warden can deposit a defendant’s

funds or a defendant can turn his or her wages over to the warden once they are

received.

The state agrees with the appellant in this case. The state maintains that

the trial court may order the appellant to pay a certain amount to defray the cost of

his incarceration, but that the trial court may not deny his application for the work

release program “solely because his employer refuses to mail his paycheck to that

office.”
1

 The original version of this statute contained a population requirement which made work

release mandatory in some counties and discretionary in others:

[C]ounties having a population of 600,000 or more according to the 1960 Federal

Census or any subsequent Federal Census shall permit certain prisoners to leave

the workhouse during reasonable and necessary hours for occupational, scholastic

or medical purposes as provided in this Act. All other counties of this state are

authorized to permit certain prisoners to leave the workhouse during reasonable and

necessary hours for occupational, scholastic or medical purposes as provided in this

Act.

1967 Tenn. Pub. Acts 259.

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The appellant’s second offense for driving under the influence occurred

on August 19, 1994. Although not noted in either brief, our Supreme Court on

June 20, 1994 declared the entire work release statute of Tenn. Code Ann. 

§ 41-2-128(c) unconstitutional in State v. Tester, 879 S.W.2d 823 (Tenn. 1994). 

Therefore, at the time the appellant committed the offense, this statute had been

rendered unconstitutional because it violated equal protection of the laws

guaranteed by the Fourteenth Amendment to the United States Constitution and

guaranteed by Article I, Section 8 and Article XI, Section 8 of the Tennessee

Constitution. Under the 1994 version of Tenn. Code Ann. § 41-2-128(c),

subsection (9) allowed only three Tennessee counties to grant work release to

persons convicted of a second violation of driving under the influence: Shelby,

Davidson, and Moore. 1

 

In 1995, the legislature amended Tenn. Code Ann. § 41-2-128(c) to

remove subsection (9); and the amended statute became effective on May 9,

1995. The amended statute contained the same language in subsection

(c)(1)(C) as the unconstitutional statute. The appellant in this case, who was

sentenced in Shelby County, negotiated a plea agreement on September 11,

1995; and the trial court approved that agreement on October 13, 1995. 

Therefore, Tenn. Code Ann. § 41-2-128(c) was applicable to the appellant when

it was unconstitutional because he was convicted in Shelby County, which was

one of the three counties in which the statute applied; and the amended statute

was applicable to the appellant as well. 
-4-

Consequently, we conclude that the trial court erred in denying the

appellant’s application to the work release program because his employer

refused to send his paycheck directly to the Shelby County Correctional Center

Work Release Program. Therefore, we respectfully reverse the judgment of the

trial court. Consistent with this opinion, the trial court will conduct a hearing to

reconsider the appellant’s work release application.

______________________________

PAUL G. SUMMERS, Judge

CONCUR:

______________________________

DAVID H. WELLES, Judge

______________________________

JOE G. RILEY, Judge