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

Briefs N ovembe

r 4, 2003
STATE OF TENN ESSEE v. TIMOTHY WAK EFIELD
Direct Appeal from the Criminal Court for Shelby County No. 99-12652 James Beasley, Jr., Judge

No. W2003-00892-CCA-R3-CD - Filed Nove mber 25, 2003

The Defendant, Timothy

Wakefield, pled g

uilty to DUI, fourth offense , and was sentenced to two yearsin confinement, suspended after service of 150 days. The De

fendant was plac ed on comm

unity
correc tions. A petition for the revocation of the Defendant’s community corrections sentence was subseque ntly file d and granted. The sole issue on appeal is whether the trial court erred by

not allowing the Defendant full credit for the time that the Def endant ha d served in the com

munity corrections prog

ram. We conclude that the trial court erred and remand to the trial court to modify its judgment to reflect ninety -eight day s of credit for time served. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed in Part; Remanded

D AV ID H. W ELLES , J., delivered the opinion of the court, in which J OE G. R ILEY and J OHN E VERE TT W ILLI AMS , JJ., joined.

Robert Wilso n Jones and Garland Ergüden, Memphis, Tennessee, for the appellant, Timothy Wakefield.

Paul G. S um mer s, A tt orn ey Gen era l an d R epo rte r; J enn ife r L. Bledsoe , Assistan t Attorne y General ; William L. Gibbons, District Attorney General; and Paul Hagerman, A ssistan t District Attorney General, for the appellee, State of Te nnessee.
OPINION

The Defend ant was p laced on community

corrections on Au gust 2, 2 001. The p etition to revoke his community

corrections status was filed on November 7, 2001. The Def endant admitted that the last ti me he re

ported to his probation officer was on August 21, 2001. Based on this, the trial court granted the

Defend ant “street cred

it” for the period August 2, 2001, to August 21, 2001. The Defendant

now conte

nds, and the State concedes, that the trial court should have gra nted credit for-2-

the entire period of August 2, 2001, through Novembe r 7, 2001, when the peti tion to rev oke his community corrections sentence was filed.

The re le va nt st at ut e p ro vi de s t ha t, up on re vo ca ti on of a c om mu ni ty corrections sen tence, “the court may rese ntence the defenda

nt to any appropr

iate sentencing alternative, i ncluding incarceration, for any period of

t ime up to the maximum sentence provided for the offense committed, less any time actually ser

ved in any community -based alternative to incarcera tion.” Tenn. Code Ann. § 40- 36-106(e)(4) (emphasis added). This Court has held that “[t]he granting of

credit f or time se rved is mandat ed b y statute and is not discretionary .” State v. Deandre M. Broaden , No. W2001-03100- CCA-R3-CD, 2002 WL

31852862, at *2 (Tenn. Crim. App., Jackson, Dec. 20, 2002);. see also State
v. Wendell S. L

ewis , No. W2001-03O98-CCA-R3-CD, 2003 WL 261935, at *1 (Tenn. Crim, App., Jackson, Feb. 4, 2003) (“ Upon rev ocation o f a commu nity corrections sentence, the trial court has the authority to modify

the sentence, not deny

cre dit f or time actually

served i n the comm

unity corrections program, no matter how lackluster or unsucc essful the defendant’s performance ”). The period of “time served” commences on the date a defendant is or dered to serve his sentence on community

corrections, and ceases on the date a petition to revoke the sentence is filed. See id. In this case, the Defendant was ordered to serve his community corrections sentenc e on August 2, 2001. The petition for revocation was filed on N ovember 7, 2001. Th

e Defe ndant is therefor

e entitle d to 98 day s of cre dit for time served i n community

correc tions.

The trial cou

rt refus ed to gr

ant the De fendant the full amount of

time serv ed on the b asis that the Defendan t had “ab sconded” from serving his sentence a s of August 21, 2001, the last day on which the Defendant reported to his probation officer. We note tha t, in State v. Robert Moore , No. 01C 01-9 608-CC-00335, 1997 WL 602883, at *3 (Tenn. Crim. App., Nashville, Sept. 30, 1997), Judg e Woodall, in

a separ ate opini on, conc luded tha t “the lan guag e of [the st atute] supp orts t

h e proposition that Defendant is not entitled to credit for t ime perio ds in which he was in an ‘absconded’ status from the Community Corrections Progra m.” Bl ac k’ s La w D ic ti on ar y 8 (6th ed. 1990) defines “abscond” as “T o go in a clandestine manner

out of the jurisdiction of the courts, or to lie con cealed , in order

to avoid their process. To hide, conceal, or absent on es el f c la nd es ti ne ly, withthe int ent to avo id legal p rocess. ” In

this case , the Def

endant w as order

ed to live with his mother during t he term o f his commu

nity correc tions sente

nce. The State’s w itness tes tified tha t,
on October

4, 2001, he

receiv ed a fax f

rom a ge ntleman in

Arkans as informing him that the Defendant

was no longer stay

ing with his mother. There was no confirmation of this information, however.

There is no proof

in the re cord bef

ore this Court that t

he De fendant was in an absconded status from the period August 21, 2001 to November 7, 2001. Accordingly , we must conclude that the Defend ant is enti

tled to credit f

or time se rved in c ommunity

correc tions comme

ncing A ugust 2, 2001 and end ing on November 7, 2001. This case is remanded to the trial court solely for the purpose of entry of a

n order granting the Def endant credit for ninet

y-e ig ht da ys served in the community

correc tions prog

ram.-3- ___________________________________ DAVID H. WEL

LES, JUDGE