### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecember

18, 2001
STATE O F TENN ESSEE v. EDWAR D KORIK
Appeal from the Criminal Court for Anderson County No. 99CR0365 James B. Scott, Jr., Judge

No. E2000-02474-CCA-R3-CD

July 8, 2002

The defenda

nt, Edwar d Korik, a ppeals the Anderson County Criminal Court’s ordering him to serve forty-five days in ja

il for his guilty plea to driving under the influenc e (DUI) , second

offense , a Class A misdemeanor. He contends that this court should remand his case to the general se ssions cou rt, where it originated, with orders that the genera l sessions c ourt cons ider his r equest f or work r elease instead o f incar

ceratio n. We af

firm the j udgment of

the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OSE PH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OOD ALL an d R OBERT W. W EDEMEYER , JJ., joined. Nancy Meyer, Clinton, Tennessee, for the appe llant, Edward Korik.

Paul G. Summers , Attorne y Gener al and Re

porter; P atricia

C. Kussm ann , Assistant Attorney Genera l; James N. R amsey, D is trict A ttorney General; Jan Hicks, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The record and briefs reflect that the de fendant pled guilty to DUI, second offense, in the Anderson County Gen

eral Ses si ons C ourt, and, pursuant to a plea agreement, the court se ntenced him to forty-fi ve days in jail. The defendant appealed his sentence to the c riminal court, which determinedthat the defendant could not serve his forty-five days of incar ceratio n on work r

elease because Anderson County did not have a work relea se program.
The defendant

appeals, claiming that the genera l sessions c ourt had t

he author ity to gran t him work release. He contends that this court should remand the case to the general sessions court and order that court

to conduc t a hearing

on his wor

k relea se reque st. The de fendant also move s this court in his reply brief not to consider the state’s brief in our disposition of the case because the brief
was untimely filed. First, we note that motions should not be made part of an appellate brief. See-2-

T.R.A.P. 22. Such a motion should have been filed. In any event, we see no prejudic e to the defendant by our accepting the state’s brief. The state claims that the trial court properly found that the defendant could not be sentenced to work rele ase b ecause Anders on County does not have a work release program. We agr ee with the state.

A general sessions court may sentence a defendant convicted of DUI, second offense, to a work release program. See Tenn. Code Ann. § 41-2-128(c) (providing that “the judge may sentence persons convic ted of a sec ond violat ion of § 55- 10-401 or

§ 55-50-5 04(a)( 2), to the work re lease program established pursuant to this section if, prior to doing so, [certain qualifying conditions have been met]”). However, this court has held that a trial court did not err in refusing to allow a DUI secondoffende

r to parti cipate in

work release wh

en Ander son County d

id not have

a work r elease program
. State v. Christopher Lindsay , No. E1999-00036-CCA-R3-CD, Anderson County (Tenn. Crim. App. Nov. 3, 2000), app. denied (Tenn. A pr. 16, 20 01); see also

Op. Tenn. Att’y Gen. No. U96-063 (Oct. 16, 1996) (providing that a judge may sent ence a DUI second offender to work releas e if the county has a workhouse but has not forma lly crea ted a wor k relea se progr

am). This court also has r

ejecte d a defe

ndant’s c laim th at the unavai lability of work release in Anderson County during the service of his mandatory c onfinemen t period for second offense DUI depr ived him of his rights to equal protection. State v. D avid Calvin Mitchell , E1999-02761-CCA-R3-CD, Anderson County (Tenn. Crim. App. Mar. 15, 2001), app. denied (Tenn. Sept. 24, 2001). Nothing in the record indicates that Anderson County has a workhouse or has adopted a work releas e program . There fore, un der the c ircumsta nces in th is case a nd inlight of Christopher Lindsay and David Calvin Mitche ll , we believe the defe

ndant is no t eligible

for work releas e. We no te that after the defendant filed his appeal with this court, the state filed a motion pursuantto Rule 20, Tenn. Ct. Crim. App. R., requesting that this court affirm the trial court’s judgment. In denying the state’s motion, this cour

t raised t he issue o f which lo wer cou rt, the general sessions court or the criminal court, was the sentencing court in this case. However, given that nothing in the record indicates that Anderson County has instituted a work release program, we need not dec ide that issue at this time.

Based upon the f

oregoing and the r ecord a s a whole , we aff

irm the ju dgm ent of the trial court.

__________________________________ JOSEPH M. TIPTON, JUDGE