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

ecember 13, 2000

STATE OF TEN

NESSEE v. MIC

HAEL 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, Micha

el Colvin, pled guilty

in the Johnson County Criminal Court to one count of possession of an ex plosiv e device, a cla ss A misdemeanor, a

nd to one count of r

eckless endangerment,

a class A misdemeanor. The judgments as entered by the tri al court incorre ctly classify the appellant as a Range I standard offender

and impose two consecutive sentences of eleven months and twenty-nine days in the J ohnson County Jail. The judgments further order that the appellant serve

thirtypercent (30%) of his sentences before becoming eligible for “program work release.” The trial court suspended service of both the appellant’s sentences, p lace d him on p robation, and imposed certain special conditions. Subsequently, the appellant pled guilty to the violat ion of his probation. T he trial court re

voked the appella

nt’s probation and

ordered th

e appellant to serve one hu ndred percent (100%) of his sentences in confinement. On appeal, the appellant raises the follow

ing issue for our r

eview: whether t

he tr ial court erred by ordering the appellant to serve one hundred

per cent (100%) of his sentences in confinement pursuant to the appellant’s probation revocation. Upon review of the record and th

e parties’ brief

s, we reverse the judgmentof the trial court and remand for mo

dification of the j udgments consisten t with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Remanded for Modification of the

Judgments.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R .,J., joined. D AVID G. H AYES , 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; Mar k A. Fulk s, Assistant Attorne y General; David Crockett, District Attorney General; and Steve Finney, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION1 The record d oes not contain an explanation of th e facts underlying the appellant’s guilty pleas.

-2- I. Factual Backgroun

d The appellant, Michael Colvin, pled guilty in the Johnson C ounty Criminal Court t

o
one count of possession of an explosive device, a class A misdemeanor, and to one count of reckles s endangerment,

a class A misdemeanor. 1 The judgments as entered by the tri al co urt 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 th at t he 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 certai n spec ial conditions.
Subsequently, the appellant pled guilty to violating his pro bation b y 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 hi s sentences in confinement.Specifica lly , the appellant argues that the maximum term the trial court could have ordered him to serve befor

e becoming eligibl

e for “release” is thirty percent (30%), the percentage set by the trial court i

n the original judgm

ents. The State ag

rees t hat the trial court erred by exceeding the percentage of incarceration imposed in the appellant’s or iginal 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 jud

gments incorrec

tly classif y th e 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 den ied
, (Tenn . 1999); see Tenn. Code Ann. § 40-35-105 (1997), Sentencing Commission Comments. Accordingly, the appellant should not have been considered

a stan dar d 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-3-

days incarceration

in the Johnson County J

ail, the maximum poss

iblesentence 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 shal l fix a percentage of the sentence which the defendant shallserve. After service of such a percentage of the sentence, the defendant shall be eligible for consideration for work release, furlough, trusty st

atus and related

rehabilitative pr

ograms. 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 be fore the defe ndant 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 percen tage s hall 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 tha t trial courts will

treat separate

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

applies and insert the figure into the ap propriate percentage

blank on the standa

rd judgment form. Terms of probation should likewise be stated and reflected on the judgment form. Trial courts which express the term of probat ion but omit the percentage

run the risk of the appellate court applying a zero p

ercentage . . . w

ith the resu l t that the defendant may avoid any confinement through furl ough or other “rehabilitative” programs, despite the court ’ s attempt to allow probation only after a stated period of time is served in confinement. Statev. 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 ha

ve also found that [w]henthis court has been faced with a transcript of the sent enci ng 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 exp

ress pronouncem

ent as reflecte

d in the transcrip

t. 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 ap

pellant to serve o

ne hundred perc

ent (100%) of his s

entences in conf

inement.

In regard to proba

tion revocations,

Tenn. Code Ann. § 40

-35-310 (1997) (

emphasis added) provides

that: [t]he trial judge shall possess the pow er, at any time within the maximum time which was directed and ordered by the court for such-4- s uspension

. . . to revoke and annul such suspension, and in such

cases the original judgment so rendered by the trialjudge shall be in full force and effect . . . . Additionally, Tenn. Code Ann. § 40-35-311(d) (1997) (emphasis added) provides that,

[i]f the trial j udge sh ould find that the [appellant] has violated the conditions of probation and suspension by a prepondera nc e of the evidence, the trial judge sha ll have the r ight . . . to revoke the pr obation and suspension of sentence and cause the [appellant ] t o commence the execution

of the judgment as originally entered

. . . . Thus, according to the language of Tenn. Code Ann. § 40-35-311(d), b ecause the original judgments reflect that the appellant would be eligible for work release or other rehabilitative programs after service

of thirty percen

t (30%) of his

sentences, t he trial court’s revocation order requiring that the appellant serve one hundred percent (100%) of hi s sentences in con finement 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 percenta ge [to be served

in confinement] shallbe . . . not in excess of seventy-five perce nt (75%)”). The trial court is authorized, upon the revocationof probation, to reinstate only the original sentence(s). See Statev. Taylor
, 992 S.W.2d 941, 945 (Tenn. 1999). We agree with the a ppellant and the Sta

te that the trial c

ourt erred in ordering the appellant to serve one hundred percent (100%) of his sentences in confinement instead of reinsta ting the original jud

gments ordering th

e appellant to ser

ve thirty percen

t (30%) of his sentences before becoming eligible for work release or other rehabilitative programs.

In connection wit

h this is sue, 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 per cen t (30%) of his sentences before becoming eligible

for work release, f

urlough, or trusty s

tatus, “the adminis

trative authority governing the rehabilitativ e program shall

have the authority in its discretion to place the [app ellant] in such programs as provided by law.” Tenn. C ode Ann. § 40-35-302(d) (emphasis added). Put another way, [t]he percentage contemplated by subsection (d) doesnot establish a per se [] date for release fr

om confinement al

together becau

se release depends upon the future discretionary act of an administrative agency and, in any event, any release is pa rt of a st ructured “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 rele

ase after serv

ing thirty percen

t (30%) of his sente

nces.

III. Conclusion Basedupon the foregoing, we reverse the judgment of the trial court and remand for modification of the judgments consistent with this opinion.-5- ___________________________________ NORMA McGEE OGLE, JUDGE