FILED

December 30, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

OCTOBER 1998 SESSION

STATE OF TENNESSEE, )

) NO. 01C01-9709-CC-00416

Appellee, )

) Giles County

VS. )

) Honorable Jim T. Hamilton, Judge

BOBBY CROOK, ) 

) (Revocation of community 

 Appellant. ) corrections) 

 ) 

FOR THE APPELLANT:

Hershell D. Koger

131 N. 1st Street

P.O. Box 1148

Pulaski, TN 38478

FOR THE APPELLEE:

John Knox Walkup

Attorney General and Reporter

 and

Karen M. Yacuzzo

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

T. Michael Bottoms

District Attorney General

 and

Richard H. Dunavant

Assistant District Attorney General

Giles County Courthouse

P.O. Box 304

Pulaski, TN 38478-0304

OPINION FILED: 

REMANDED FOR RESENTENCING

Joseph M. Tipton,

Judge
1

 The propriety of sentencing the defendant to com munity corrections in view of the nature

of the se of fens es is n ot an issue befo re this court in this appe al.

2

O P I N I O N

The defendant, Bobby Crook, appeals as of right from the judgment of the

trial court resentencing him to consecutive ten-year sentences upon revoking his

community corrections sentences. He was originally sentenced to concurrent ten-year

terms. The defendant contends that the trial court erroneously imposed the

consecutive sentences without first conducting a sentencing hearing and making

findings that consecutive sentences were appropriate. The judgment of the trial court

revoking the defendant's community corrections sentences is affirmed. However, the

consecutive sentences are vacated, and this cause is remanded for a new sentencing

hearing.

The defendant was originally indicted for especially aggravated

kidnapping and aggravated rape, Class A felonies. He entered into a plea agreement

with the state and pled guilty to facilitation of especially aggravated kidnapping and

facilitation of aggravated rape, Class B felonies. As part of the agreement, the

defendant was sentenced as a Range I, standard offender, to concurrent ten-year

sentences to be served on community corrections.1

 The negotiated plea provided that

he would be resentenced to consecutive ten-year terms if he were later judged to have

violated the terms of his alternative sentences. The trial court later determined that he

violated the terms of the community corrections sentences and, without conducting a

sentencing hearing or making findings to support consecutive sentences, imposed the

consecutive sentences pursuant to the parties’ original plea agreement.
3

I.

Initially, we note that a trial court has the power, upon revocation of a

community corrections sentence, to resentence a defendant to a period of incarceration

up to the maximum for the offense originally committed, with credit for time already

served in the community corrections program. T. C. A. § 40-36-106(e)(4). A trial court

may impose a sentence greater than the original sentence without offending the Double

Jeopardy Clause of either the United States Constitution or Tennessee Constitution. 

State v. Griffith, 787 S.W.2d 340, 341-42 (Tenn. 1990).

The purpose of allowing the trial court to impose a new sentence is that

the nature, circumstances and frequency of the defendant’s violations may “warrant a

different type of alternative sentence or incarceration.” State v. Ervin, 939 S.W.2d 581,

583 (Tenn. Crim. App. 1996). The trial court may not, however, use the statute for the

sole purpose of punishing a defendant for violating the community corrections

sentence. Id.

II.

The Tennessee Criminal Sentencing Reform Act and the Community

Corrections Act are in pari materia. State v. Taylor, 744 S.W.2d 919, 920 (Tenn. Crim.

App. 1987). Consequently, when a trial court opts to resentence a defendant to a

sentence more severe than the original, the trial court must conduct a sentencing

hearing pursuant to the principles of the Sentencing Reform Act. State v. Cooper, 977

S.W.2d 130, 132 (Tenn. Crim. App. 1998); Ervin, 939 S.W.2d at 583; State v. Keith F.

Batts, No. 01C01-9210-CR-00326, Davidson County, slip op. at 5 (Tenn. Crim. App.

Feb. 18, 1993).
4

It is mandatory for the trial court to state on the record the reasons for

imposing a new sentence. State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App.

1987). The Sentencing Reform Act provides that the record of the sentencing hearing

“shall include specific findings of fact upon which application of the sentencing

principles was based.” T. C. A. § 40-35-209(c).

The purpose of the statutory requirements is to ensure that a proper

record is made for appellate review. Ervin, 939 S.W.2d at 584. The fact that this court

is required to make a de novo review does not in any way diminish the trial court’s

statutory duty to comply with the guidelines and mandates of the Sentencing Reform

Act. Gauldin, 737 S.W.2d at 798.

III.

We believe the instant case is similar to State v. Timothy Lemont Wade,

No. 01C01-9303-CR-00092, Davidson County (Tenn. Crim. App. Nov. 24, 1993), and

Batts. In each case, the trial court informed the defendant at the sentencing hearing

that he would be sentenced to a maximum sentence if his community corrections

sentence were ever revoked. In each instance, the defendant agreed to community

corrections with this understanding. When the community corrections sentences in

those cases were revoked, the respective trial courts immediately imposed maximum

sentences without making the findings required by the Sentencing Reform Act. This

court remanded both cases for new sentencing hearings.

In the instant case, the trial court erred in setting a sentence, before

revocation of the community corrections sentences, that would be automatically

imposed in the event the community corrections sentences were revoked. This is the

same situation condemned in Wade and Batts in that the trial court increased the 
2

This court does not me an to imp ly that c onsecutive se nten ces could

 not be im posed fo llowing a se nten cing hearing. C onsecutive se nten ces ma y validly

5

effective sentence solely for the purpose of punishing the defendant for violating the

terms of the community corrections sentence. See Ervin, 939 S.W.2d at 583. Here, as

there, the practice is improper.

IV.

We are not unmindful of the Sentencing Reform Act’s provisions

dispensing with the sentencing hearing when the district attorney general and the

defendant agree upon a sentence which is accepted by the trial court. See T. C. A. §§

40-35-203(b), -205(d). However, we conclude that the agreement in the instant case

whereby the defendant agreed to two separate sentences for the same two offenses,

one of which was contingent upon future conduct of the defendant, is neither

contemplated nor authorized by the Sentencing Reform Act or the Community

Corrections Act.

We are also mindful that the state in the original plea negotiations

reduced the charges as a part of the plea agreement. The defendant unequivocally

agreed at that time to consecutive sentencing in the event of a future violation and now,

in effect, seeks to renege on the agreement. Nevertheless, having established that the

automatically increased sentences were not authorized, at this juncture this court can

only remand for a new sentencing hearing. Therefore, as the defendant was not

afforded the requisite hearing upon revocation as provided by the Sentencing Reform

Act, this case must be remanded for such a sentencing hearing.2
result from a violation of community corrections if based upon proper grounds after a new

sentencing hearing.

6

_________________________

Joseph M. Tipton, Judge

CONCUR:

___________________________

Joe G. Riley, Judge

___________________________

James Curwood Witt, Jr., Judge