# FILED
July 16, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE OC TOBER 1995 SESSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9501- CR-00017

) ) Washington County v. ) ) Honorable Ly nn W. Brown, Judge ) PHILLIP BOWLING, ) (Senten cing) ) Appellant. ) For the Appell ant : For the Appell ee : David F. Bautista Charles W. Burson Distric t Public Defender Attorney Gen eral of Tennessee and and Deborah B. Hus kins George Li nebau gh Assistant Publ ic Defender Assistant Att orney Gener al of Tennessee 142 E. Market Street 450 James Roberts on Parkway Johnson City , TN 37601 Nashvil le, TN 37243-0493 David E. Crockett Distric t Attorney General Route 19, Box

99 Johnson City , TN 37601 and Joe C. Crumley, Jr. Assistant D istrict A

ttorney Gener

al W ashington County Courthouse P.O. Box 38 Jonesborough, TN 37659

OPINION FILE D:____________________
AMENDED J UDGMENT VAC ATED; REMAND ED Joseph M. Tipton Judge2 O P I N I O N The defendant appeals as of ri ght from three, concurrent twelve-year sentences that the W ashington County Criminal Court imposed upo n him after it revoked his suspended senten ce. He contends that the trial court errone ously enhanced the three, ten-year s entences it previously imposed in thi s case by applying improperly

two enhancement factors and ig noring an appl icable mitig ating factor. Because we conclude that the t rial court was w ithout the author ity to i ncrease the defendant’s sentence, we vac ate the amended judg ments of the trial court and order that the defen dant serve the original ten-year, concurrent sentences.

On May 7, 1992, the defen dant pled guilty to three cocaine-related Class B felonies and rec eived three , concurrent ten-year s entences in the c ustody of the Department of Corr

ection. Judg ments of convic tion wereentered on that dat e and he was trans ferred to the Depar tment of Correcti on and began ser ving hi s time. The Department of Corr

ection placed hi m in the boot camp pr ogram, see T.C.A. § 40-20- 201, -207, and then, effective April 13, 1993, placed hi m on probation for th e remainder of his sentences. See T.C.A. § 40-20- 206.

After issuing a probation revocation warrant in August 1993 , the trial court entered a series of orders. Th e first stated that the de fendant was to serve ten years in the community corrections program, from Oc tober 15, 1993 to O ctober 15, 2003, an d listed condi tions of his re lease. The second or der revoked the defendant’s prob ation and ordered that h e serve ten years i n the Department of C orrection but noted, in a footnote, that the defendant was placed on the a lternative community co rrections program. The th ird order p rovided for the defendant’s immediat e release and s tated that hewas to be pl aced i n the c ommunit y cor recti ons program .3 In May 1994, the trial c ourt issued a warrant alleging that the defendant again violated his probation. After a he aring, the trial court revoked the defend ant’s suspended sentence a nd sentenced him to twelv e years i n the Department of Correction for each of the three o ffenses. The trial c ourt cited the defendant’s histor y of criminal behav ior, inabil ity to abi de by condit ions of a sentence i nvolvi ng release into the community, and lack of mitig ating factors . The trial c ourt entered amended judgments that reflect that the de fendant’s sentences were inc reased upon rev ocation of a community cor rections sent ence. Althoug h we agree with the trial cour t that enhancement o f the defen dant’s sentence would have been ap propriate had the court been revoki ng a sentence un der the Tennessee C ommunity Cor rections Act of 1985,
see T.C.A. § 40-36- 106(e)(3), it was not proper under t he facts of this cas e.
We begin our analysis

by recog nizing the distinct ion between t he revocatio n of a community c orrection s entence and a probati on revocati on. When a trial cour t revokes

a community corrections sentence under the Tennessee Community Correction s Act of 1985, it h as the authorit y to “re sentence the defendant to any appropriate se ntencing alt ernative, including incarcerati on, for any per iod of time up to the maximum sentence provided for the off ense committed, less an y time actually served in any community-based alternative to i ncarceration .” T.C.A. § 40- 36-106(e)(3)

. By contras t, a trial court that deter mines that a probation viol ation has occur red can cause execut ion of the orig inal judgment as it w as origi nally enter ed, see T.C.A. § 40- 35-310, -311, or

can modify the defendant ’s condition s of supervi sion, includ ing extending the defendant’s probati onary peri od for up to tw o years. See T.C.A. § 40-35- 308.

In this case, the defendant initial ly recei ved a ten-year sentence in the Department of Corr

ection. Once t he defendant was tr ansferred to the D epartment of Correction , the trial court lost j urisdicti on. See T.C.A. § 40-35- 212(d). Purs uant to4

T.C.A. § 40-20-2 06, when the D epartment of Corre ction placed t he defendant on probation for the r

emainder of his ten- year sentenc e, the trial court had jur isdiction t o use the procedu res set f orth in T .C.A. § 4 0-35-31 1 to revoke the prob ation. Although the trial c ourt properl y ordered that the defendant’s pr obation be revoked and that he serve his ten-year sentence in the D epartment of Corre ction, see T.C.A. § 40-35- 311(d), it al so ordered that the defendant serv e ten years in the community

correctio ns program, from Oc

tober 15, 1993 unti l October 15, 2003.
It is apparent that the trial court intended to convert the defendant’s tenyear sentenc e into a community correctio ns sentence. H owever , neither the Community Co rrections Act nor the st atutes dealing with pr obation authoriz e a court to impose a new sentence unde r the Act after a defe ndant has partially served his sentence in the D epartment of Corre ction.

Although the tr ial court l acked juris diction to i mpose a community corrections sentence when it determined that the def endant violated his probation, it did have the author ity to or der the defendant’s par ticipation i n the community corrections program as a condition of his continui ng on probati on. See T.C.A. § 40-35- 108 (allowing more onerous probation conditions resu lting from a revocation hearing); T.C.A. § 40-36-106(f ) (providing for use of a community corrections program as a condition of probat ion). Thus, the orders the trial court ent ered in 1993 eff ectively resulted in t he modification of the defendant’ s conditions of probation, not the imposition of a comm unity corrections sentence

.

W hen the trial court revoked the def endant’s suspended sentence in August of 1994, the d efendant was ser ving theremainder of his original ten-year sentence on probati on, and the trial court wa s to proceed under the probation revocatio n statutes. The tr ial court had the authority to commence exec ution of the5

original judgment as i t was ori ginally entered, see T.C.A. § 40-35- 310, -311, or th e authority to modify the def endant’s conditions of supervision and to extend his probationary

period for up to two year s, see T.C.A. § 40-35- 308, but it did not have the authority to increase t he defendant’s orig inal sentence.

Accordingly, the amended judgment s of conviction of the trial court are vacated and the case is remanded to the trial court for rei nstatement of the ten-year sentences imposed in the orig inal judgment s of convict ion.

Joseph M. Tipto n, Judge

CONCUR:

John H. P eay, Judge

David G. Hayes, Jud ge