### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

une 5, 2002
STATE OF TENNESSEE v. PATSY WEBSTER
Appeal from the Circuit Court for Henry County No. 13116 Julian P. Guinn, Judge

No. W2001-01908-CCA-R3-CD - Filed June 26, 2002

The defendant,

Patsy Webster, appeals the Henry County Circuit Court’s ordering her to serve one year of her eff

ective two-yea

r sentence in

continuous confinement. She claims that the trial court erred in requiring her to serve a full year in jail because she was eligible as a Range I offender with only atwo-year sentence for release after serving thirty percent of her sentence . The state agre es. We hold that the defendant was improperly sentenced and remand the case for rese ntencing. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed , Case 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. Guy T. Wilkinson, District Public Defender, and W. Jeffery Fag an , Assistant Distric t Public Defender, for the appellant, Patsy Webster.

Paul G. Summers, Attorney General and Reporter; Angele M. Gregory, Assistant Attorney General; G. Robert R adford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The defenda nt origin ally pled guilty to three counts of forgery, a Class E felony. On December

11, 2000, the trial court sentenced her as aRange I, standard offender to concurrent oneyear sentences to be served in the community corrections program upon her serving s

ixty days in jail. On May 2, 2001, a violation warrant was filed regarding her receiving convictions for driving on a revoked license and driving under

the influence, se

cond offense. She

also violated the terms of her community

corrections sentence by

being away from

home and being intoxicated at the time of her arrest for those offens es. On May 22, 2001, the tr ial court revoke

d the defendant’ s community corrections sentence.-2-

At the resentencing on July 9, 2001, the p arties relied upon the presentence report. The report reflects that the

defendant has c

onvictions for var

ious misdemeanors , incl uding assault, marijuana possession, possession of drug paraphernalia, failure to appear, and public intoxication. Moreover, the report states that some of those offenses were committed while the defendant was “on bond or suspended sentence.” Finding the existence of t wo enha ncement factors, the trial court sentenced the defendant a

s a Range I, standa

rd offender to

the two-year maximum for each Class E forgery conviction, the sentences to be served concurrently. The trial court further ordered that one year be served in continuous confinement while the second year be served on supervised probation.

The defendant contends, and the state agrees, that the trial court erred in ordering her to serve one year in

continuous confinement. Given the present state of the law, we agre

e. This case pre

sents somewhat of an anomaly by which th e law substantiall

y restricts the trial court’s sentencing options for confinement for a recalcitrant offender.

Pursuant to Tenn. Code Ann. § 40-35-501(a)(3), a person receiving a felony sentence of two years or less to

the Department of Correction ora jail or a workhouse, for a non-violent, non drugrelated offense is entitled to release on probation upon reaching the person’s release eligibility date. Longer detention for such an offense and sentence can only occur when the offender has disciplinary violations while serving time in confineme

nt. Tenn. Code Ann. § 40-35-501(a)(6). Thus, the defendant’s ef

fective two-yea

r sentence with

a thirty percent

release eligibility date en

titled her to be released on probation after serving two hundred nineteen days. The trial court could not require her to serve a longer time in confinement. This is not, howe ver, the only limit to the defendant’s confinement.

Because the defendant

was serving a community corrections sentence that was revoked, any resentencing was subject to her receiving credit for the time she served in the community corrections program. See

Tenn. Code Ann. § 40-3 6-106(e)( 4). In this respec t, the defendant w

as originally sentenced on December 11, 2000, and the community corrections sentence was revoked on May 22, 2001. Also, the defenda

nt was entitled to c

redit for any othe

r time spent in conf

ineme nt for the original offenses. See Tenn. Code Ann. § 40-23-101(c). We note that the judgments entered for the defendant’s re

sentencing provid

e only sixty-eight d

ays credit. Finally, we note

that a trial court cannot preclude the application of relevant conduc

t credits. See, e.g. , State v. Clark , 67 S.W.3d 73, 78 (Tenn. Crim. App. 2 001). That is, the trial court’s sentencing order cannot circumvent the application of conduct credits that may otherwise accrue while the defendant is confined.-3-

In consideration of the foregoing, we hold that the trial court erred

in imposing a sentence of continuous confin

ement for one year. We remand the case for resentencing in light of our opinion.

___________________________________ JOSEPH M. TIPTON, JUDGE