FILED

February 25, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JANUARY SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9802-CC-00072

)

Appellee, )

)

) FRANKLIN COUNTY

VS. )

) HON. THOM AS W. GRAHAM

JOHN W. HILL, ) JUDGE

)

Appellant. ) (Direct Appeal - Violation of Habitual

) Traffic Offender Law)

FOR THE APPELLANT: FOR THE APPELLEE:

FRANCIS W. PRYOR JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

12th Judicial District

200 Betsy Pack Drive CLINTON J. MORGAN

Jasper, TN 37347 Counsel for the State

425 Fifth Avenue North

Nashville, TN 37243-0493

J. MICHAEL TAYLOR

District Attorney General

STEVEN BLOUNT

Assistant District Attorney

1002 West Main

Decherd, TN 37324

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
1On December 18, 1997, the trial court modified the sentence and ordered Appellant to serve 150

days in the county jail, with the remaining period of confinement to be served if his appeal was

unsuc cessf ul. 

-2-

OPINION

On June 26, 1997, Appellant John W. Hill pleaded guilty to operating a

vehicle in violation of the habitual traffic offender law, a Class E felony. On

August 22, 1997, the trial court imposed a two year sentence, with one year to

be served “day by day” in the Franklin County Jail and one year to be served in

the Community CorrectionsProgram.1

 Appellant challenges his sentence, raising

the following issue: whether a trial court can impose a longer period of

confinement by use of a split sentence under Tennessee Code Annotated section

40-35-306(a) than is allowed under Tennessee Code Annotated section 40-35-

501(a)(3). After a review of the record, we reverse and remand this case for resentencing

FACTS

On May 18, 1996, Officer Charles Keller of the Decherd, Tennessee Police

Department stopped Appellant for driving twenty-three miles per hour in a fiftyfive mile per hour zone. Appellant was unable to provide the officer with a

driver’s license because his license was suspended after he was declared to be

a habitual traffic offender on July 27, 1995.
2

The State take s no p ositio n on the m erits o f App ellant’s arg um ent. In stea d, the State me rely

argues that this issue has been waived for reasons that we find unpersuasive.

3

Tenn essee Code Annota ted sec tion 40-36 -106(f) p oints out tha t this statute is a pplicable to

community corrections:

Nothing herein shall prevent a court from permitting an eligible defendant to participate in a

com mun ity-based a lternative to inc arcera tion as a c ondition of probation in conjun ction with . . .

split confinement . . . as provided by chapter 35 of this title.

Tenn. Code A nn. § 40-35-106(f) (Supp. 1998).

-3-

ANALYSIS

Appellant contends that the trial court erred when it sentenced him to one

year of confinement followed by one year in the Community Corrections Program

because the general rule under Tennessee law is that a felon who receives a

sentence of two years or less must be released from confinement on his or her

release eligibility date.2

 We agree.

In imposing a period of confinement in the county jail followed by one year

in the Community Corrections Program, the trial court apparently relied on

Tennessee Code Annotated section 40-33-306(a), which states:

A defendant receiving probation may be required to serve a portion of the

sentence in continuous confinement for up to one (1) year in the local jail

or workhouse, with probation for a period of time up to and including the

statutory maximum time for the class of the conviction offense.

Tenn. Code Ann. § 40-35-306(a) (1997).3

 

Appellant argues that in his case, imposition of a sentence of one year of

confinement followed by one year in the Community Corrections Program is

inconsistent with Tennessee Code Annotated section 40-35-501(a)(3), which

states:

Notwithstanding any other provision of law, inmates with felony sentences

of two (2) years or less shall have the remainder of their original sentence

suspended upon reaching their release eligibility date.
4

This intention is consistent with the legislature’s recognition that, because prison resources are

limited, the mos t serious f elony offen ders sh ould rece ive priority in sente nces inv olving incar ceration. See

Tenn. Code Ann. § 40-35-102(5)–(6) (1997). Tennessee Code Annotated Section 40-35-501(a)(6)(A)

provides a mechanism for authorities to keep a prisoner sentenced to two years or less incarcerated

beyond his release eligibility date if the prisoner poses disciplinary problems while in the jail or

penitentia ry.

-4-

Tenn. Code Ann. § 40-35-501(a)(3) (Supp. 1998). For Range I standard

offenders, the release eligibility date occurs after service of thirty percent of the

actual sentence imposed, less any sentencing credits earned and retained.

Tenn. Code Ann. § 40-35-501(c) (Supp. 1998).

In order to resolve this issue, section 40-35-306(a) must be read “in pari

materia” with section 40-35-501(a)(3) in order to give effect to legislative intent.

See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (“Statutes ‘in pari

materia’—those relating to the same subject or having a com mon purpose—are

to be construed together.”). It is clear that in enacting section 40-35-501(a)(3),

the legislature intended for a felon who received a sentence of two years or less

to be released from confinement on his or her release eligibility date, regardless

of whether the sentence combined confinement with any other form of

punishment. 4

 Allowing a court to circumvent a defendant’s release eligibility date

by imposing a longer period of confinement under section 40-35-306(a) would

completely eviscerate the legislative intent behind the enactment of section 40-

35-501(a)(3). When the two statutes are read together, it is evident that section

40-35-306(a) allows a court to impose a period of up to one year in the local jail

as part of a sentence involving split confinement, but only if the period of

confinement would be completed on or before the defendant’s release eligibility

date under section 40-35-501.
-5-

Because Appellant was sentenced as a Range I standard offender, his

release eligibility date would occur after serving thirty percent of his sentence,

less any applicable sentencing credits. Thus, had Appellant simply received a

sentence of two years of confinement, his release eligibility date would have

occurred after service of 219 days of his sentence, less any applicable

sentencing credits. Therefore, we hold that the trial court erred when it attempted

to circumvent section 40-35-501(a)(3) by sentencing Appellant to one year of

confinement followed by one year in the Community Corrections Program.

Accordingly, we reverse the sentence in this case and remand for resentencing in accordance with this opinion.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

DAVID H. WELLES, JUDGE