1 The defendant also pled guilty to l eaving the scene of an accident. He make s no comp laint r egarding his sentence for t

hat offense

. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE November 2, 1999 Session
STATE OF TENNESSEE v. CHRISTOPHER LINDSAY
Appeal as of Right from the Criminal Court for Anderson County

No. 98CR0137 James B. Scott, Jr.Judge,

No. E1998-00036-CCA-R3-CD November 3, 2000

On September 25, 1 998, Christopher Lindsay, the defendant and appellant, pled g uilty to driving under the influence, second offense. 1 Following a sentencing hearing, the trial court

sentenced the defendant to eleven months and twenty-nine days, all of whic h was to be served on

probation except forty-five days. On appeal, the defendant arg ues (1) that the trial court should have ordered the defendant to serve his mandatory

minimum incarceration in a work release program, and (2) that the trial court should have ordered the de fendant to se rve his mandatory minimum incarceration on a periodic basis. A

fter a thorough

review of the re

cord, we affir

m the judgment of t

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

J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON , J., and T HOMAS T. W OODALL , J., joined.

Nan cy Meye r, C lin ton , Te nne sse e at tor ney fo r th e app ell ant , Ch ris top her L ind say.
Paul G. Summers, Attorney General & Reporter , Marvin S. Blair, Jr., Nashville, Tennessee and James N. Ramsey, D

istrict Attorney

General, Jan Hick

s, Assistant Distric

t Attorney, f

or the appell

ee , State of Tennessee.

OPINION

WORK RELEASE The defendant challenges the trial court’s decision not to allow him to participate in a work release program. He argues that the court erred when it held that the court was with

out authority

to order the defendant to

participate in such a program because Anderson County did not have a work release program.2 Section 1 of the Fourteen th Amendmen t to the United States Constitution pro vides:

No State shall

make or enforce any l aw which shal

l abridge the priv

ileges or immunities

of cit izens of the United Sta

tes; n or shall any sta te depriv e any pers on of life, l iberty or proper

ty, wi thout du e process of

law; nor

deny to an

y person within its jurisdiction the equal pr otection of the laws.

Two provisions of the Tenne ssee Constitution encomp ass the equal protection guara ntee. Article I, Section 8 provides:

No man to be disturbed b ut by law.-- That no man sh all be t aken or imprison ed, or disseized of

his freehol

d, liberti es or privil

eg es, or out lawed, or exiled, or in any manner dest

royed or depr

ived of hi

s lif e, libe rty or pr operty but

by the judgm ent of his peer s or the law of the land.
Article XI, Section 8 pro vides:

General laws only to be passed.--The Legislature s hall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals i nconsistent with the general laws of the land; nor to pass any law granting to any indivi dual or indivi duals, rig hts, priv ileges, i mmunitie, [immunitie s] or exemptions ot her than s

uch as m ay be, by the

same law extended to any member of the commu nity, who may be able to bring himself within t he provisions of such law.

3 This restriction made work release fo r second offense DU I offenders o nly a vailable to those in Davidson, Shelby, and M oore Counties.
-2- Contrary to the defendant’ s assertion, Ande rson County’ s failure to institut e a work release program does not violate the defendant’s right to equal protection. Equal protectionis guaranteed by both the United States and TennesseeConstitutions. 2 Although "[t]he equal protection provisions of the Tennessee Constitution and the Fourteenth A mendment are historically and linguistical

ly distinct," the Tennessee Supreme Court has stated that Article I, section 8 and Article XI, section 8 of the Tennessee Constitution confer "essentially the same protection" as the equal protection clause of the United States Constitution. State v. Tester , 879 S.W.2 d 823, 827-28 (Tenn. 1994) (citing Tennessee Small School Systems v. McWherter , 851 S.W.2d 139, 152 (Tenn. 1993)). Under both the state and federal constitutions, a statute does not unc

onstitutionally

create
an unreasonable

classification un

less it applies to som

e groups and excludes others. State v. Teasley , 653 S.W.2d 761, 762 (Tenn. Crim. App. 1983). That is not the case here b ecause the statutes at issue are equall

y applicabl e to all counties. Section 41-2-128 allows the mandatory minimum incarceration

for a second DUI conviction to be served in a

work release pr

ogram provided

certain conditions are met. Until Tester , however, the act only applied to defendants

in counties with either
a metropolitan form of government or a population of seven hundred thousand (700,000) or more. 3 See Tenn. Code Ann . § 41-2-128(c)(1) & (9) (1990 & Supp. 1993). The Tester Court held the statute unconstitutional be

cause the legislature had no rational basis for excluding ninety-two (92) counties f rom the prog ram. Tester , 879 S.W.2d at 830. I n response to the d

ecision, the State Legislature

again passe

d the stat ute, but without the l anguage re

stricting the pro

gram to certai

n-3-

counti es. See Tenn. Code Ann. § 41-2-128 (1997). The Legislature also amended section 134, which provided procedures for implementation of the program to the counties, to reflect the changes to section 128. See Tenn. Code Ann. § 41-2-134 (1997). Furthermore, the Tennessee L egislature has

clearly sta

ted that “[a]ll count

ies in the state . .

. may institute

a work release program . . . .” Tenn. Code Ann. § 41-2-133 (Emphasis added). The
use of the permissive w

ord “may” i

ndicate s that, wh ile the legislature intended to authorize each county to institute

a work release

program, it did no

t intend the progr

am to be compulsory . Thus, t he amen ded statutes do not compel each c ounty to cre

ate a work rele

ase program. I

n short, this legislation has not crea ted a cl ass ifi cat ion ; in deed , it has spe cif ica lly d eclined to do so. Thus, the defendant’s equal protection rights are not implicated. Furthermore, because Anderson County did not have a work re lease program, the trial court did not err i

n sentencing the

defendant as it di

d. Work release is

a form of probati

on and is, therefore, a privilege and not a right. State v. Correll , 626 S.W.2d 699 (Tenn. 1982); State v. Lowe , 661 S.W.2d 701 (Tenn. Crim. App. 1983). We have been unable to find any support for the defendant's argument that trial courts should sentence defendants to work relea se even when the county in which the defendant is sentenced does not have a work re lease program. Nor do we find any authority giving a trial judge the right to order a misdemeanor sentence to be served in a county other than the one in which the offense occurred. Thus, we find no error in the trial court's determination that the defendant must serve forty-five ( 45) days, the statutory minimum incarceration

for a second DUI

, in jail. This issue h

as no merit.

PERIODIC CONFINEMENT The defendant next argues that the trial court sho

uldhave ordered him to serve his sentence
on a periodic basis.

Punishment for driving under the influence, second offense is governed by Tenn. Code Ann. § 55-10-403 (1998). The relevant portions of this statute state:

(a)(1) For conviction on the second offense, there shall be imposed a f ine of n ot less than six hundred dollars ($600) nor more than three thousand five hundred dollars ($5,000) and the person or persons shallbe confined in the county jail or workhouse for not less than forty-five (45) da ys nor

more than eleven (11) months and twenty-nine

(29) days, an

d the court shall prohibit such convicted person or persons from driving a vehicle in the state of Tennessee for
a period of time of tw

o (2) year s. . . . After serv

ice of at le ast t he minimum sentence day for day , the judge has the discretion to require
a n individual convicted of a violation of the provisions of Secs

. 55-10-401--55-10-404 to remove litter . . . provided, that any person [so] sentenced ... shall be allowed to do so at a time other thansuch person's reg

ular hours of empl

oyment. (b)(1) No person charged with vi olating the provi

sions of Secs. 55-10-401--55-10-404 shall be eligible for suspensionof prosecution and dismissal o f cha rges pursuant to the provisions of Se

cs. 40-15 -1 02--40-15-105 and 40-32-101(a)(3)-(c)(3) or for any other4 Tenn. Cod e Ann. § 40-35 -307 provides for p eriodic confinement in certain circum stances.
-4- pretrial diversion progr

am, nor shall

any person

convicted under such sections be eligible for suspension of sentence or probation pursuant to Sec. 40-21-101 [repealed] or any other prov ision of law auth orizing suspension of sentence or probation until such time as such person has fully served day f or day at leas t the minimum sentence provided by law.

This Court has determined that the terms “day for da y” exclude th e possibility o

f periodic confin ement f

or a DUI offender until the offender has served the manda tory minimum. State v. Gurley , 691 S.W.2d 562, 563-64 (Tenn. Crim. App. 1984). Furthermore, despite provisions in the Sentencing Reform Act of 1989 that provide for periodic confinement, the Tennessee Supr eme Court held that the Sentencing Refo

rm Act does not app

ly to DUI sentences in which application of the act would serve to “alter, amend, or decrease the pena lties” provid

ed by law. State v. Palmer , 902 S.W.2d 391 (Tenn. 1995). 4 This Court has previously held that allowing a DUI offe nder to serve his mandatory minimum sentence on a periodi c bas is would impermissibl y alter the

penalty envisioned by Tenn. Code Ann. § 55-10-403. See State v. Darrel John East , No. 01C01-9408-CC

0288, 1995 WL 562239, at *2 (Tenn. Crim. A pp. at Nashville, Se

pt. 22, 1995). Thus,

the trial court correctly held that it was without authority to order the defendant to serve his mandatory minimum sentence on a periodic basis. Accordingly, the judgment of the trial court is AFFI RMED.

___________________________________ JERRY SMITH, JUDGE