# FILED
April 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF

CRIMINAL APPEAL

S OF TENNESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 03C01-9707- CC-00269 Appellant, ) ) Jefferson County V. ) ) Honorable Ben W. Hoope r, II, Judge ) JESSE JAMES GILB ERT, JR., ) (State Appeal - Sentencing) ) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: John Knox Walkup Edward C. Miller Attorney General & Reporter District Public Defender Timothy F. Behan Robert W. Scott Assistant Attorney Gener al Assistant Public Defender Criminal Justice Div

ision Fourth Judicial Distr ict 425 Fifth Avenue North P.O. Box 416 Nashville, TN 37243-0493 Dandridge, TN 37725-0416 Al Schmutzer, Jr. District Attorney General James L. Gass Assistant District A

ttorney General Fourth Judicial District P.O. Box 70 Dandridge, TN 37725-0070

OPINION FILED: ___________________
REVERSED AND REMANDED FOR RESENTENCING
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellee, Jesse James Gilbert, Jr., was convicted by a jury of rape in the Criminal Court of Jefferson C ounty. The court sentenced the ap pellee to serve one year in the county jail, with the remainder of his sentence to be served in the community corrections program. The state appealed. Th e issue is whether the court erred in sentencing the appellant to community corrections when he was convic

ted of a violent felony. We respectfully reverse the judgment of the trial cou rt and remand f or resentencin g.
The appellee was convic ted of rape, a class B felony. The sentencing range for the appellant as a R ange I, class B felon is ei ght to twelve y ears. Tenn. Code Ann. §§ 39-13-503 (Supp. 1996) & 40-35-112(a)(2) (1990)

.
The court sentenced the appellee to on e year in the county j ail followed by seven years supervision pursuant to the Community Corrections Act (“the Act”) codified at Tennessee Code Annotated §§ 40- 36-101 through 306 (Supp. 1996). The court began at the minimum sentenc e of eight years. The court found that no enhancement factors applied. The trial court carefully considered the factors required by the Cri minal Sentencing Reform Act. See Tenn. Code Ann. §§ 40- 35-101 et seq. (Supp. 1996). He followed the procedure prescribed by the sentencing act. The court stated his findings for the record. Th e court noted his confidence in the appellee’s abil ity to reform. He war ned the appellee that if he should come back before the court bec ause of sentence violations, then the court could sentence him to a s entence greater than eight years. Tenn. Code Ann. § 40-36-106(e)(4) (S upp. 1996).
Both the state and appellee agree that the appellee does not qual ify for punishment under the Community C orrections Act codified at Tennes see Code Annotated § 40-36-101-306 (Supp. 1996 ). One of the purposes of the Act is to establish a policy within the state to punish selected, nonviolent felony off enders-3- in front-end community based alt ernatives to incarcer

ation, thereby reserv

ing secure confinement facilities for v iolent felony offenders. Tenn. Code Ann. § 40-36-103 (Supp. 1996). An offender must meet minimum criteria before the court is required to consider punishment pursuant to the Act. The appellee does not meet two of those criteri a because he committed a violent offense and he committed a felony offense involv ing a crime against a person. Tenn. Code Ann. § 40-36-106(a)(2) & ( 3). Therefore, the sentence is not authorized by the sentencing act.
The state essentially arg ues that it is inconsist ent to make defendants convicted of rape eligi ble for straight probation but not eligible for stri cter forms of alternative sentencing

such as community correc tions. The appellee contends that he is eligible for pr obation because he received a n eight year sentence for his crime. Tenn. Code Ann. § 40- 35-303(a) (Supp. 1996). The appel lee is not presumed to be a favorable candidat e for alternative sentenci ng because he was convicted of a class B felony . Tenn. Code Ann. § 40-35-102(6) (Supp. 1996). However, the trial

court may still cons ider the appellee for probation p ursuant to Tenn. Code Ann. § 40-35-102(5).
The adju dged sent ence is no t author ized by the legislatu re. Wh ile we may agree with the reasoning of the state, a change in the sentencing act is within the province of the legislature. Therefore, we respectfully remand this case to the trial court for resentencing.

______________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-4- _____________________________ JERRY L. SMITH, Jud ge

_____________________________ CURWOOD W ITT, Judge