# FILED

Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE MA Y SESSION, 1997

STA TE OF TENN ESSEE, ) ) No. 01C01-9603 -CR-00101 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. THOMAS H . SHRIVER, Judge ANA ND FRA NKLIN, ) ) (Agg ra vat ed Se xu al Ba tt er y) ) Ap pellee ) ST ATE APP EAL
For the Appell ee : For the Appell ant : TERRY J. CA NADY CHARLES W. BURSON 211 Printer' s Alley Bldg, Suite 400 Attorney Gen eral and Repor ter Nashvil le, TN 37201 KATHY MORANTE Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. (

TORRY) JOHNSON II I Distric t Attorney General BILL REED Asst. Dist rict Attor ney General Washington Square Buildi ng 222 2nd Avenue, N Nashvil le, TN 37201

OPINION FILE D: REVERSED AN D REMAND ED

David G . Hayes Judge1 As a s ub iss ue , the Sta te c on tes ts th e tr ial c ou rt’s au tho rity to im po se ba nis hm en t to In dia as a form of pu nish m ent. In v iew o f our holdin g tha t the de fen dan t is ineligible fo r com m unity correct ions sen tenci ng, we f ind i t unnecessary t o reach t his que sti on. 2 OPINION
The State of Tennessee appeals the sentencingdecision of the D avidson County Criminal Court permitting the defen dant, Anand Franklin, to serve his sentence in the l ocal community correctio ns program. On appeal, the State challenges the eligib ility of the defendant for sentencingunder the Communit y Correction s Act. 1

After review, we reverse the judgment of the t rial court and remand.

The defendant, a resident of India, was initially charged w ith three counts of aggravated rape and one cou nt of aggrav ated sexual battery upon minor children. A

t a jury trial, the defendant was found gu ilty of ag gravated sexual battery. The proof at the sentenci ng hearingestablished t hat the defendant was granted entry into the United States f or a ninety day period to attend a “seminar.” The record sug gests that t his was in connection w ith his work as a miss ionary for the Seventh D ay Advent ist Church. On the date the offense was committed, the ninety day

period had ex pired, thus, t he defendant was i n this countr y illeg ally. At the sentencinghearing, t he defendant requeste d that he be permit ted to return to Indi a. The trial court was also informed that t he victi m’s mother did not oppose the defendant’s r eturn to his native countr y. The State oppo sed any form of release, arg uing instead that the defendant’s pl ace of confinement should be the Depa rtment of Correc tion. At the conclusion of the s entencing hearing, the trial cour

t imposed an eig ht year sen tence upon the defendant w ith placement in the l ocal community correctio ns program. The order further provided for the defendant’s rel ease from jail on March 15, and, as “a conditi on of the Commun ity Corrections, that he go to India on March 19th.” It is from this3

Order that the State now appea ls.
Eligibility for sentencing under the Tennesse e Community Corrections Act of 1985 is governed by Tenn. Code An n. § 40-36-106(a) and (c) (1990). In this case, the defen dant was convicted of aggravated sexual battery, which is a felony offense “inv

olving [a] crime[ ] against the pe rson as prov ided in Title 3 9, . . . Chapter

13, parts 1-5 ; thus, he is ineligib le for community correctio ns sentencing und er subsection (a). Tenn. Co de Ann. § 40-36-106 (a)(2). In order to be eligi ble for community correctio ns sentencingunder subsecti on (c), the offender must be statutor ily eli gible for pr obation. State v. Stat en , 787 S.W.2d 934, 936 (Tenn. Cr im. App. 1989); Stat e v. Cro we , No. 01C01-950 3-CC-0064 (Tenn. Crim. Ap p. at Nashv ille, 1995); State v. Blackburn , No. 02C01-9111-CC00253 (Tenn. Cri m. App. at Jacks on, 1993); State v. Wilson , No. 03C01-920 9- CR-00305, (Tenn. Crim. App. a t Knoxville, 1993).
Tenn. Code Ann. § 40- 35-303(a) pr ovides that “[a] defendant shall be eligiblefor probation . . . if the sentence actually imposed upon such defendant is eight ( 8) years

or less; pr

ovided, that a defendant shall not be eligibl e for probation under the provis ions of this chapt er if he is con victed of a v iolation of . . . § 39-13-504.”

Because the defendant was convic ted of Tenn. Code Ann. § 39- 13-504, aggravated sexual battery, he is statutori ly ineli gible for communi ty corrections sentencing und er subsection (c). Accordingly , the defendant’s sent ence to community cor rections is an illega l sentence and must be vacated.

This matter is remanded to the tri al court w ith instruc tions that the defendant , Anand Franklin, be ordered to serve his sente nce of eight years as a Range one offender w ith the Tennessee D epartment of Corre ction.4 ____________________________________ DAVID G. HA YES, Judge

CONCUR:

______________________________________ PAUL G. S UMMERS, Ju dge

______________________________________ JERRY L. SMI TH, Jud ge