# FILED February 25, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JANUARY SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9802- CC-00072 ) Appellee, ) ) ) FRANKLIN COUNTY VS. ) ) HON . THOM AS W. G RAHAM JOHN W. HILL, ) JUDGE ) Appe llant. ) (Direct Appeal- Violati on of Habitual ) Traffic Off

ender Law)

FOR THE APPELLANT : FOR THE APPELLEE : FRANCI S W. PRYOR JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 12th Judicial Dist rict 200 Betsy P ack Drive CLINTON J. MORGAN Jasper, TN 37347 Coun sel for the S tate 425 Fifth Avenu e North Nashvill e, TN 37243-0493 J. MI CHAEL TAY LOR Distri ct Attor ney General STEVEN BLOUNT Assistant Distri ct Attor ney 1002 We st Main Decherd, TN 37324
OPINION FILED ________________________ REVERSED AND REMANDED JERRY L . SMI TH, J UDGE1 On December 18, 1997, the trial cour t modified the sentence and order ed Appellant

to serve 150 days in the county j ail, with t he remaining period of confinement t o be served if

his appeal was unsuc cessf ul. -2-



# OPINION

On June 26, 1997, Appellant John W. Hill pleaded guilty to operati ng a vehicle in viola ti on of thehabi tua l t raf

fi c offen der l aw, a Cla ss E felo ny. On August 22, 199 7, the trial cou rt impos ed a two year sen tence, w ith one ye ar to be served “day by day” i n the Frankli n County Jailand one year to be se rved in the Comm unity Corrections Pro gra m. 1 Appe llant c hallenges hi s sentence, r aising the followi ng issue: whet her a t ria l court can impose a longer period of confinementby use of a spl it sente nce under Tennessee Code A nnotat ed section 40-35-306(a) than is allowed under Tennessee Code Annotated secti on 40-35- 501(a)(3). After a r

eview of t he record, we reverse and r emand this case for

resentencing FACTS

On May 18, 1996, Off icer Charles Kell er of the Decherd, Tennessee Police Department stopped Appell ant for driving twen ty-three miles per h our in a fiftyfive mile p er hou r zone . Appe llant wa s una ble to p rovid e the offi cer with a driver’s license becaus e his li cense was suspended after he was declared to be a habitual traff ic offen der on July 27, 1995.2 The State take s no p ositio n on t he 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 unpersuasi ve. 3 Tenn essee Code Annota ted sec tion 40-36 -106(f) p oints out tha t this statute is a pplicable to community correcti ons:

Nothing herei n shall pr event a court

from permitti ng an eligi ble defendant to parti cipate i n a com mun ity-based a lternative to inc arcera tion as a c ondition of probation in conjun ction with . . . split confinement . .. as provi ded by chapter 35 of thi s title. Tenn. Code A nn. § 40-35-106(f) (Supp. 1998). -3- ANALY SIS
Appellant

contends that

the tri al court erred when it sentenced him to one yearof confi nement foll owed by one year in t he Community Correcti ons Program because the general rule under Tennessee l aw is tha t a felon who receives a sentence of two years or lessmust be released f rom confinement on hi s or her release el igibil ity date. 2 We agree.

In imposing a peri od of confi nement in thecoun ty jail followed by one year i n th e Community Correcti ons Program, the t rial cour t apparentl y reli ed on Tennessee Code An notated section 40-33-306(a), which states: A defendant rece iving probation may berequired to serve a port ion of the sentence in conti nuous confinement f or up to one (1) year in the lo cal jail or workhouse, wit h probation f or a period of

time up to and i ncluding t he statutor y maximum time for t he class of t he convicti on offense. Tenn. C ode Ann . § 40-35-306 (a) (1997). 3
Appellant

argues that in his case, impos ition of a sentence of one year of confinementfollowed by one year i n t he Com mun ity Corre ctions Prog ram is inconsistent with Tennessee Code Annotated section 40-35-501(a)(3), which states: Notwithstanding any other pro vision of law , inmates with felony sentences of two (2) years or less shall have the remainder of their original sentence suspended upon reaching their r elease eli gibility 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.§ 40-35-1 02(5)–( 6) (1997) . Tennessee Cod e Annotated Secti on 40-35- 501(a)( 6)(A) provides a mechanism for authoriti es to keep a pri soner sentenced to two years o r less i ncarcerated beyond his r

elease eli gibil ity

date if the prisone r poses disci plinar y probl ems while in t he jailor pen itentia ry. -4- T enn. Code Ann. § 4 0-35-50 1(a)(3) (S upp. 19 98). For R ange I s tandar d offenders, the release el igibil ity date occurs after servi ce of thi rty percent of the
a ctual sentence imposed, less any sentencing credi ts earned and ret ai ned
. Tenn. C ode Ann . § 40-35-501 (c) (Supp. 199 8).

In order to re solve this iss ue, secti o n 40-35-30 6(a) must be read “in pari materia”with sect ion 40-35 -501( a)(3) in order to g ive effect to leg islative intent. See Owen s v. State , 908 S.W.2d 923, 926 (Tenn. 19 95) (“Stat utes ‘in pari materia’—those relating to the same subject or having a com mon pu rpose— are to be con strued to gether.”). It is clear that in enacting sect ion 40-35-501 (a)(3), the legislatur

e intended for a felon who recei ved a sentence of two years or less to be released from confinement on his or her releaseeligibil ity date, r egardless of whether the sen tence c ombined confinement wi th any other form of punish ment. 4 Allowing a cou rt to circu mven t a defe ndan t’s release e ligibility date by imposing a longer period of confinement under sec tion 40 -35-3 06(a) would comp letely evisce rate the legi slativ e intent b ehind the enact ment of secti on 40- 35-501(a)(3 ). When the two statutes are read together, it is evident t hat secti on 40-35-306(a) allows

a cou rt to imp ose a period of up to one ye ar in the loc al jail
as part of a s entence involving split confin ement, bu t on ly if the period of confinementwould be completed on or be fore the d efenda nt’s releas e eligibility date under sect ion 40-35-501.-5- Because Appella nt was se ntence d as a R ange I sta ndard o ff ender , his release eligi bilit

y date would occ ur after serving t hirty

percent of h i s senten ce, less any applicable sentenci ng credits . Thus , ha d Appellant s imply received a sentence of two yea rs of conf inement, his rele ase eligibility date would h ave oc curred after ser

vice of 219 days of his sentence, l ess any appli cab l e sentencing credits. Therefore, we hold that the trial cou rt erred when it attempted to circumvent se ction 40-35-50 1(a)(3) by sentenc ing Appellant to one year of conf ine ment

fol low ed by

one yea r i n th e Commu nit y Cor rec

ti ons Pro gra m.
According ly, we reverse t he sentence in t his case and remand fo r resentencing i n accordance wit h this opi nion.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ DAVID H. WELLES , JUD GE