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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE October 14, 2003 Se ssion STATE OF TENNESSEE v. DERRICK L. DI LLARD Direct Appeal from the Circuit Court for Dickson County No. CR5795 Robert E. Burch, Judge

No. M2002-03089-CCA-R3-CD - F iled January 16, 2004

Defend ant, Derrick L. Dillard, a rgues in this appeal that the trial court erred by imposing an illegal sentence following a hearing in which the trial court found that Defendant had violated the terms and conditions of his Community Corrections sentence. The State agrees that the trial court err ed. After a full review of the record, we re verse the judgment of the trial court and re mand for entry

of an order consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

and Rema

nded for Entr

y of an Ame

nded Judgm ent
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Merrily n Feirman, Nashville, Tennessee, (on appe al) and William Bradley Lockert, I

II , District Public Defend

er; C. Wa de B obo , As si st ant Pu bl ic D efe nde r; a nd C hri st oph er L. Young, Assistant Public Defender, (at trial) for the appellant, De rrick L. Dillard. Paul G. Summers, Attorney Gene ral and Repor

ter; Chris tine M. Lapp s, Assista nt Attorne

y General ; Helena Walton Yar

brough , Assi stant A ttorney Gene ral; Dan M. Alsobrooks, District Attorney Genera l; and Suzanne Lockert, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Following the entry of ple as of nolo contendere to misdemeanor theft and multipl e counts of Class E felony

forge ry , Defen dant was found guilty of these offenses and sentenced to an e ffective sentence of four ye ars, eleven months, and twenty -nine days. De fendant was sentenced to serve the entire sentence in the Community Corrections program. Within a few months , a Com munity Corrections violation w arrant was issue d. At the violation he aring, Franc is W ade, a C ommunity2

Corrections officer, testified that Defendant violated sever al rules of Community

Correct ions. De fendantmov ed away

from his assigned residence with his gra ndparents without first obtaining the permission of his case officer. He failed to report to his case officer twice per wee k as required by his Com m unity Corrections sentence . He also refused to submit to random supervised drug screen s. Defendant

visited the Community Corrections office on May 30, 2002, having already

been informed that he would be r equired to submit to a

random dr

ug test. He left without permission and without submitting to the drug test. Defendant

tes tified that in one fell swoop he was ordered by his grandparents to move, he lost his r ide to work, a nd therefore los t his job. He testifie d that he a

ttempted t

o contac t his case officer by paging her, but the case of ficer never returned his pag es. Regarding the failu

re to subm

it to a scheduled dru g test, D efenda nt sta ted that he left the Community

Correct ions offic e befor

e su bmi tting to the test because his child was sick, and Defendant

was in possession of the child’s insurance card. Defendant c laimed that he attempted to get the attention

of his case officer to advise her of the situation, but was una ble to do so because the case officer was meeting with other clients. He claimed that he did not call the case of ficer f rom his daughter’s home to advise her of the situation beca use he “wasn’t thinking clearly .” Followin g the vio lation he aring, the trial court found Defe

ndant to be

not cred ible: THE COURT: The Court finds that [Defendant] is in violation of the terms and conditions of his Community Corrections. The story con cernin g l e aving the appointment prior to the drug sc reen, Mr . Dillard

[Defenda nt], on the w ay

back up to the jail look a

round the square a nd see if you find the tu

rnip truck that you think I

came to town on. This Court sentenc es y ou to eighteen months d ay for day in the county workhouse. A fter you ha

ve completed eighteen months day

for day you will be placed back out on Community

Corrections, level one supe rvision, h ouse arr

est. You mess up again and I ’ll give you a nother one.
Not surprisin gly , Defen dant doesnot conte st the tria l court’s f

inding that he violated

the terms and cond

itions of hi s Community Corrections sentence. De fendant argues, however, that the sentence of eighteen months incarceration was improper. We agree. Accordingly , we reverse and remand this case for entry of an order consistent with this opinion.
In the order entered following the hea ring, the trial court did not revoke th e sentence of Community

Corrections, but specifically found that Defendant was in violation of the terms and conditions of his Community Corrections sentence a nd ordered

him to serve eighteen months “day3

for day” in the c ounty jail, following which, he would be r eturned to serve his sentence in the Community Corrections, at L evel 1 supervision. When a trial court finds a d efenda nt t o be in viol ation of th e terms a nd conditi ons of his Community

Corrections sentence, the trial court may allow the defendant to continue to serve the sent ence in the Community Corrections progra m, but impose, as a condition thereof, a period of incarceration. State v. Ti

m Mattingl

y , No. M2002-02765-CCA-R3-CD, 2003 WL 22038777, 2003 Tenn. Crim. App. LEXI S 754 (Tenn. Crim. App. at Nashville, filed Sept. 2, 2003), no perm. to app. filed

. Tennessee Code Annotated section 4 0-36-106 (e)(2) states tha t the tria l court “ shallretain the authority to alt er o r amend a

t any time the le

ngth, te rms, or c onditions”of the Comm unity Corrections sentence imposed. If incarceration is imposed as a condition of continuing in the Community

Corrections sentence, however, the per iod of confinement may not exceed one ye ar. State v. Jimmy D. Johnson , No. 03C01-9602-CC-00062, 1997 WL 634532, 1997 Tenn. Crim. App. LEXI S 1037 (Tenn. Crim. App. at Knoxville, filed Oct. 16, 1997), no perm. to appeal filed

. Ac co rd in gl y, the trial court couldnot impose incarceration of more than one y ear in this case. Furthermore, Defend ant is enti tled to earn good conduct credits and/or a uthorized work

credit if he received a sentence of

incarceration in the county jail as a part of his Community Corrections sentence. State v. Alicia

Tharpe, No. M2002-00992-CCA-MR3-CD, 2003 WL 1787296, 2003 Ten n . Crim. App. LEXI S 306 (Tenn. Crim. App. at Nashville, filed Apr. 4, 20 03), perm. to app. denied (Tenn. 2003). While Tharpe involves a sentence of split-confinement followed by probation, we se e no distinction betwee

n that ca se and ca ses in

which the defendant is given “shock incar ceration” as part of a Community Correc tions sentence. CONCLUSION
For the reasons stated herein, the jud gment of the trial cou rt is reve rsed, and this cas e is remanded for entry of

an amend

ed judg ment orde

ring De fendant to serve one year in the county

jail, and then returned to serving his sentence on Community Corrections at Level 1 supervision.

____________________________________ THOMAS T. WOODALL , JUDGE