### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON June 4, 2002

Session
STATE OF TENNESSEE v. DEBRA KAY THOM AS
Appeal from the Circuit Court for Henry County No. 12113 Julian P. Guinn, Judge

No. W2001-02039-CCA-R3-CD - Filed July 18, 2002

The defendant, Debra Kay Thomas, appe als the Henry County Circuit Court’s resentencing her upon revocation of

her community corrections sentence. She claim s that the t rial cou rt erre d in failin g to give her credit for the time she served in confineme nt and in the community corrections pro gr am under her original sentence. The state agrees. We hold that the defendant was improperly sentenced and remand the case for rese ntencing. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Revers ed and Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J ER RY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined.

Victoria L. DiBona

ventura , Paris, Te

nnessee , for the

appella nt, Debr a Kay Tho mas.
Paul G. Summers, Attorney Genera l and Repo

rter; P. Robin Dixon , Jr., Ass istant Atto rney Ge neral; G. Robert Radford, District Attorney General; and Steven L. Gar rett, Assistant Di st rict Attorney General, for the appellee, State of Te nnessee.
OPINION

On May 31, 1994, the defendan t pled guilty to possession of a Schedule II controlled substance with intent to deliver or sell, a Class B felon y; p ossession of a Schedule III controlled substance with inten

t to delive r or sell, a Class D felony; a nd simple p ossession

of mariju ana, a Cl ass A misdemeanor. The trial court sentenced her a s a Range I, standard offend er to an effe ctive sentence of eight years with seven year s to be served in the community corrections program upon her serving one year in confinement. On July 3, 2001, a community corrections violation warrant
was filed alleging that the defendant had tested positive for marijuana on Ma y 29, 2001. On July 9, 2001, the trial court revoked the defendant’s community corr ections sentence.-2-

At the resentencing hearing, Joseph Fry, the defendant’s community corrections supervisor, testified the defendant ha d done w ell in community corrections until she tested positive for marijua na. He said f

ailing the drug scr een was the only r

eason fo r revoki ng her co mmu nit y corrections sentence. He said that before the d efend ant tested positive for marijuana, he had discussed her drug problem with her and she had enrolled in an inpatient treatment program. He said that the defendant stayed in the program only four of five da ys and that she left the p

rogram a gainst medical advice. He said the defendant cited her high blood pressure and other medical problems as reasons for leaving the treatment program.

Th e defenda

nt testified that whe

n she ente

red the i npatient

treatme nt progra m, her bloo d pressure “shot up.” She said she left the program and went into the hospital to get treatment for her high blood pre ssure. She

said that after she left the hospital, she began an intensive outpatient drug treatment program at

Baptist Hospital. She said she completed that program and began an aftercare program in which she received counseling once or twice a month at

the Carey Counseling Center. She said she was going to stay in the aftercare progra m in order to remain drug free. She said she wanted to be retur ned to com

munity cor

rection s. The presentence report ref lects that the then f

orty-one -year- olddefendant had dropped out of high school in the tent h grad e and was trying to get her GED. The defenda nt reported having several medical problems and suffering from manic-depre ssive illness. According to the report, the defendant started using marijuana in 1973 and relapsed in M ay 2001 , when medical and personal problems became too much for her to handle. The defendant was pr eviously convicted of

a traff ic offense.

The trial court noted that

the minimum sentence in this case is eight years. See Tenn. Code Ann. § 40-35-112(a)(2). Although th e trial c ourt state d that enh anceme nt facto rs applie d, it

decided notto enhanc e the def

endant’ s sentenc e. The tr ia l court found that no mitigating factors applied. It resente nced the defenda nt to eight y ears, w ith six months to be served in continuous confinement and the remainder of the sentence to be ser ved in the co mmunity co rrections program. When defense counsel a sked if the defendant woul d get cre dit for th e ti me she served under the original sentence, the trial court stated that the defendant could not “credit the old sentence against the new one.”

The defendant claims that the trial court erred in failing to give her credi t for the time she spent in c onfineme

nt and in the commu

nity corrections program under her original sentenc e. She contends that in refusing to give her any cre dit, the tr

ial cour t sentenc ed her in

effect to sixteen years when the maximum sentence within her range is only twel ve year s. The state agrees that the defendant is entitled to receive credit for the time she served in community corrections. We conclude that the tr

ial cour t improper

ly sentenced the d

efenda nt.

Pursuant to Tenn. Code Ann. § 40-36-106(e)(4), a trial court has the power, upon revocation of a community corrections sentence, to resentence a defendant to a period

of incarceration up to the maximum for the offense originally committed. The trial court must resentence the defenda nt within-3-

the range of the original sentence. Statev. Patty , 922 S.W.2d 102, 104 (Tenn. 1995). Moreover, any resentencing is subject to a defendant rece iving credit fo r the ti me he or she served in the community

corrections program. Tenn. Cod e Ann. § 40 -36-106( e)(4). A defen dant is en titled to credit for any other time spent in confinement for the original sentence . Tenn. Code Ann. § 40-23- 101(c). Inthis case , the def endant should have

receiv ed such c

redit for the time she se

rved in ja il and in the community corrections program under her original sentenc e.
In consideration of the foregoing, we hold that the trial court err ed in resent enc ing the defendant without giving her c

redit for time served i n confinement or in the community corrections program under he r origina l sentenc e. We re

mand the c ase for

resente ncing in light of our opinion.

___________________________________ JOSEPH M. TIPTON, JUDGE