IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 13, 2000

STATE OF TENNESSEE v. MICHAEL COLVIN

 Appeal as of Right from the Criminal Court for Johnson County

No. 2471 Lynn W. Brown, Judge

No. E2000-00701-CCA-R3-CD

April 30, 2001

The appellant, Michael Colvin, pled guilty in the Johnson County Criminal Court to one count of

possession of an explosive device, a class A misdemeanor, and to one count of reckless

endangerment, a class A misdemeanor. The judgments as entered by the trial court incorrectly

classify the appellant as a Range I standard offender and impose two consecutive sentences of eleven

months and twenty-nine days in the Johnson County Jail. The judgments further order that the

appellant serve thirty percent (30%) of his sentences before becoming eligible for “program work

release.” The trial court suspended service of both the appellant’s sentences, placed him on

probation, and imposed certain special conditions. Subsequently, the appellant pled guilty to the

violation of his probation. The trial court revoked the appellant’s probation and ordered the

appellant to serve one hundred percent (100%) of his sentences in confinement. On appeal, the

appellant raises the following issue for our review: whether the trial court erred by ordering the

appellant to serve one hundred percent (100%) of his sentences in confinement pursuant to the

appellant’s probation revocation. Upon review of the record and the parties’ briefs, we reverse the

judgment of the trial court and remand for modification of the judgments consistent with this

opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Remanded for

Modification of the Judgments.

NORMAMCGEE OGLE,J., delivered the opinion of the court, in whichJAMES CURWOOD WITT,JR.,J.,

joined. DAVID G. HAYES, J., filed a dissenting opinion.

Steve McEwen, Mountain City, Tennessee; David F. Bautista and Ivan M. Lilly, Johnson City,

Tennessee, for the appellant, Michael Colvin.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;

David Crockett, District Attorney General; and Steve Finney, Assistant District Attorney General,

for the appellee, State of Tennessee. 

OPINION
1

 The record d oes not contain an explanation of th e facts underlying the appellant’s guilty pleas.

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I. Factual Background

The appellant, Michael Colvin, pled guilty in the Johnson County Criminal Court to

one count of possession of an explosive device, a class A misdemeanor, and to one count of reckless

endangerment, a class A misdemeanor.1

 The judgments as entered by the trial court incorrectly

classify the appellant as a standard Range I offender. The trial court sentenced the appellant to two

consecutive sentences of eleven months and twenty-nine days in the Johnson County Jail and further

ordered that the appellant serve thirty percent (30%) of his sentences in confinement before

becoming eligible for work release or other rehabilitative programs. The trial court suspended

service of both the appellant’s sentences, placed him on probation, and imposed certain special

conditions.

Subsequently, the appellant pled guilty to violating his probation by absconding. The

trial court revoked the appellant’s probation and ordered the appellant to serve one hundred percent

(100%) of his sentences in confinement. On appeal, the appellant raises the following issue for our

review: whether the trial court erred by ordering the appellant to serve one hundred percent (100%)

of his sentences in confinement pursuant to the appellant’s probation revocation.

II. Analysis

The appellant contends that, pursuant to his guilty plea to violating his probation, the

trial court inappropriately ordered him to serve one hundred percent (100%) of his sentences in

confinement. Specifically, the appellant argues that the maximum term the trial court could have

ordered him to serve before becoming eligible for “release” is thirty percent (30%), the percentage

set by the trial court in the original judgments. The State agrees that the trial court erred by

exceeding the percentage of incarceration imposed in the appellant’s original judgments and

specifically asks this court to remand for resentencing. Upon review of the issue, we agree that the

trial court erred, but we reach our conclusion through different reasoning.

Initially we note that the judgments incorrectly classify the appellant as a standard

Range I offender. As this court has found, “[t]he sentencing ranges established in Tennessee Code

Annotated §§ 40-35-105 through 109 do not apply to misdemeanor sentences.” State v. Lauren E.

Leslie, No. 03C01-9804-CR-00125, 1999 WL 153773, at *4 (Tenn. Crim. App. at Knoxville, March

23, 1999), perm. to appeal denied, (Tenn. 1999); see Tenn. Code Ann. § 40-35-105 (1997),

Sentencing Commission Comments. Accordingly, the appellant should not have been considered

a standard Range I offender in determining the appropriate sentences for his misdemeanor

convictions.

In misdemeanor sentencing, the trial court must first establish the length of the

sentence(s) to be imposed. Tenn. Code Ann. § 40-35-302(b) (1997). In the present case, the trial

court correctly imposed on the appellant two consecutive terms of eleven months and twenty-nine
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days incarceration in the Johnson County Jail, the maximum possible sentence for his two class A

misdemeanor convictions. See Tenn. Code Ann. § 40-35-111(e)(1) (1997). After setting the length

of the misdemeanor sentences, 

the court shall fix a percentage of the sentence which the defendant

shall serve. After service of such a percentage of the sentence, the

defendant shall be eligible for consideration for work release,

furlough, trusty status and related rehabilitative programs.

Tenn. Code Ann. § 40-35-302(d). Moreover, “[t]he misdemeanor sentencing statute provides that

the percentage of the sentence to be served in confinement before the defendant is eligible for

rehabilitative programs shall not exceed 75 percent.” State v. Russell, 10 S.W.3d 270, 278 (Tenn.

Crim. App. 1999). Furthermore, the percentage shall be considered zero percent if there is no

percentage indicated on the judgment. Id. This court has also noted that

Section 40-35-302 contemplates that trial courts will treat separately

the issues of “percentage” and probation. The trial court should state

the percentage that applies and insert the figure into the appropriate

percentage blank on the standard judgment form. Terms of probation

should likewise be stated and reflected on the judgment form. Trial

courts which express the term of probation but omit the percentage

run the risk of the appellate court applying a zero percentage . . . with

the result that the defendant may avoid any confinement through

furlough or other “rehabilitative” programs, despite the court’s

attempt to allow probation only after a stated period of time is served

in confinement.

State v. Scott Wyatt, No. M1998-00470-CCA-R3-CD, 1999 WL 1266338, at *6 (Tenn. Crim. App.

at Nashville, December 29, 1999), perm. to appeal denied, (Tenn. 2000) (citation omitted).

However, we have also found that 

[w]hen this court has been faced with a transcript of the sentencing

hearing clearly indicating the trial court’s intention that the

defendant’s percentage is not zero percent . . . we have deferred to the

trial court’s express pronouncement as reflected in the transcript.

Russell, 10 S.W.3d at 278. 

In the instant case, the trial court suspended the appellant’s sentences and granted the

appellant probation, which the appellant subsequently violated. The judgments clearly reflect that

the trial court’s intention was that the appellant serve thirty percent (30%) of his eleven month and

twenty-nine day misdemeanor sentences in confinement before becoming eligible for work release

or other rehabilitative programs. However, when the trial court revoked the appellant’s probation,

it ordered the appellant to serve one hundred percent (100%) of his sentences in confinement.

In regard to probation revocations, Tenn. Code Ann. § 40-35-310 (1997) (emphasis

added) provides that:

[t]he trial judge shall possess the power, at any time within the

maximum time which was directed and ordered by the court for such
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suspension . . . to revoke and annul such suspension, and in such

cases the original judgment so rendered by the trial judge shall be in

full force and effect . . . .

Additionally, Tenn. Code Ann. § 40-35-311(d) (1997) (emphasis added) provides that, 

[i]f the trial judge should find that the [appellant] has violated the

conditions of probation and suspension by a preponderance of the

evidence, the trial judge shall have the right . . . to revoke the

probation and suspension of sentence and cause the [appellant] to

commence the execution of the judgment as originally entered . . . .

Thus, according to the language of Tenn. Code Ann. § 40-35-311(d), because the

original judgments reflect that the appellant would be eligible for work release or other rehabilitative

programs after service of thirty percent (30%) of his sentences, the trial court’s revocation order

requiring that the appellant serve one hundred percent (100%) of his sentences in confinement is

clearly outside the scope of the trial court’s authority. See State v. Hunter, 1 S.W.3d 643, 647 (Tenn.

1999); see also Tenn. Code Ann. § 40-35-302(d) (“[t]he percentage [to be served in confinement]

shall be . . . not in excess of seventy-five percent (75%)”). The trial court is authorized, upon the

revocation of probation, to reinstate only the original sentence(s). See State v. Taylor, 992 S.W.2d

941, 945 (Tenn. 1999). We agree with the appellant and the State that the trial court erred in

ordering the appellant to serve one hundred percent (100%) of his sentences in confinement instead

of reinstating the original judgments ordering the appellant to serve thirty percent (30%) of his

sentences before becoming eligible for work release or other rehabilitative programs. 

In connection with this issue, we also note that Tenn. Code Ann. § 40-35-302(b)

provides that “the [appellant] shall be responsible for the entire sentence” imposed by the trial court.

Accordingly, although the appellant need only serve thirty percent (30%) of his sentences before

becoming eligible for work release, furlough, or trusty status, “the administrative authority

governing the rehabilitative program shall have the authority in its discretion to place the [appellant]

in such programs as provided by law.” Tenn. Code Ann. § 40-35-302(d) (emphasis added). Put

another way, 

[t]he percentage contemplated by subsection (d) does not establish a

per se[] date for release from confinement altogether because release

depends upon the future discretionary act of an administrative agency

and, in any event, any release is part of a structured “rehabilitative

program” and may only be partial or episodic in nature. 

Leslie, No. 03C01-9804-CR-00125, 1999 WL 153773, at *4. In sum, the appellant is not guaranteed

any form of release after serving thirty percent (30%) of his sentences.

III. Conclusion

Based upon the foregoing, we reverse the judgment of the trial court and remand for

modification of the judgments consistent with this opinion.
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___________________________________ 

NORMA McGEE OGLE, JUDGE