# FILED

Au gust 5, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

) STA TE OF TENN ESSEE, ) ) C.C.A. N o. 02C01-9607-C R-00228 Appellee, ) ) Shelby C ounty V. ) ) Honorab le Arthu r T. Ben nett, Ju dge JONA THA N A SKEW, ) ) (Sente ncing) Appellant. ) )

FOR TH E APPEL LANT: 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 Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 William L. Gibbons Distric t Attorney General Perry H ayes Assistant D istrict A

ttorney Gener

al Criminal J ustice Complex 201 Poplar, Sui te 301 Memphis, TN 38103

OPINION FILE D: ___________________
REVERSED A ND REMA NDED PAU L G. SUMM ERS, Judge-2- O P I N I O N

As pa rt of a nego tiat ed pl ea ag reem ent, the a ppe llan t, Jo nath an As kew, pled guilt y to driv ing whi le under the in fluence and to driv ing whi le his lic ense was revoked, c anceled, or sus pended. This was the appellant’ s second conv iction for driving while und er the influence, which is a violati on of Tenn. Code Ann. § 55- 10- 401 (1993). Although the trial court f ound the appellant eligible for the work release program, it denied his application to the program because his emp loyer, the State of Tennessee, refused to send his paycheck direc tly to the Shelby County Cor rectional C enter Work Release Progr am. We respectfully reverse the judgment of the tr ial court and remand for recons ideration of the appl ication.
The appellant arg ues that Tenn. Code An n. § 41-2-128( c)(1)(C ) (Supp. 1994) requi res only that “[t]he defendant ag ree[] to defray , to the best of the defendant’s abilit

y, the cost

of incarcerati on and treatment,” not that the appellant’s pay roll check be sent direc

tly to the work release office. He, therefore, contends that the em ployer agreement required for the work release program is more string ent than the statuteitself. He furt her argues that Tenn. Code Ann. § 41-2-129 (Supp. 1994 ) provides that even the warden can deposit a def endant’s funds or a defe ndant can turn his or her wages over to the warden once they are received.
The state agrees

with the appellant in thi s case. The stat e maintains that the trial c ourt may or

der the appellant

to pay a cer

tain amount to defray

the cost of his incarceration, but that the trial court m ay not deny his application for the work release prog ram “solely because his empl oyer refuses to mail his paycheck to that office.”1 The original version of thi s statut e contained a populat ion requirement which made work release mandatory

in some counties and discret ionary i n others: [C]ounti es having a popul ation of 600,000 or more accord ing to t he 1960 Federal Censu s or any

subs eque nt F eder al Ce nsus shal l pe rmitcert ain pri sone rs t o le ave the work house during re asona ble and ne cessa ry hours f or occu pational, sc holastic or medical purposes a s provided in t his Act. All oth er countie s of this state are authoriz ed to permit certain pr isoners to leave the workhouse during reaso nable and neces sary hou rs for oc cupation al, schola stic or m edical pu rposes as prov ided in this Act. 1967 Tenn. Pub. Act s 259. -3- The appellant’s s econd offense for driv ing under theinfluence occur red on August 19, 199 4. Although no t noted in either brief, our Supreme Court on June 20, 1994 declar

ed the entire w

ork release statute of Tenn. Code Ann. § 41-2-128(c) unconstitutio nal in State v. Tester , 879 S.W.2d 823 (Tenn. 1994). Therefore, at the time the appellant commi tted the offense, this s tatute had been rend ered unco nsti tuti ona l bec ause it viol ated equa l prot ecti on of the l aws guaranteed by

the Fourteenth A mendment to the United States Consti tution and guaranteed by

Article I , Section 8 and Ar ticle XI, Section 8 of the Tenness ee Constitution. Under the 1994 version of Tenn. Code Ann . § 41-2-128(c), subsection (9 ) allow ed only three Tennessee counties to grant w

ork release to pers ons c onvic ted o f a se cond violat ion o f dri ving un der t he in flu ence : She lby, Davidson, and Moore. 1

In 1995, the leg islature amended Tenn. Code Ann. § 41- 2-128(c) to remove subsec

tion (9); and the amended statute bec ame effective on May 9, 1995. The amended statute contained the same l anguage in s ubsection (c)(1)( C) as the unc onstitutional statute. The appell ant in this c ase, who was sentenced in Shel by County , negotiated a plea agreement o n September 11, 1995; and the tri al court appr oved that ag reement on October 13, 1995. Therefore, Tenn. Code Ann. § 41-2-128(c) was appl icable to the ap pellant wh en it was unconstitutional because he was convicted in Shelby County, w hich was one of the three counti es in whi ch the statute appl ied; and the amended st atute was appli cable to the appel lant as we ll.-4- Consequently , we concl ude that the tri al court err ed in denyin g the appellant’s appl ication to the work release progr am because his empl oyer refused to send his

paycheck di rectly to the Shelby County Co rrectional Center Work Release Program. Therefore, we res pectfully reverse the judgment of the trial cour t. Consiste nt with th is opinion, t he trial cour t will conduct a heari ng to reconsider t he appellant’s work release application.

______________________________ PAUL G. S UMMERS, Ju dge
CONCUR:

______________________________ DAVID H. W ELLES , Judge

______________________________ JOE G. RIL EY, Judge