FILED

September 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JUNE SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9608-CC-00335

) 

Appellee, )

) DICKSON COUNTY

)

V. )

) HON. ALLEN W. WALLACE, JUDGE

ROBERT MOORE, )

)

 Appellant. ) (Community Corrections Revocation)

SEPARATE OPINION CONCURRING IN

PART AND DISSENTING IN PART

I concur in all parts of Judge Barker’s well-written opinion, except as

to that portion which remands this case to the trial court for a new sentencing

hearing, to which part I respectfully dissent. The Defendant in this case did not

dispute the trial court’s termination of Defendant’s placement in the Community

Corrections Program. The sole issue on appeal, as specifically phrased by the

Defendant, is “can the trial court deny the Defendant credit for time actually

served in a community based alternative to incarceration upon revocation of that

sentence?”

In the trial court, the State did not request the court to increase

Defendant’s sentence, which the trial court was entitled to do upon a full

sentencing hearing after considering enhancement and mitigating factors.

Instead, the Assistant District Attorney General succinctly set forth her request

as follows: “The State’s position is just go ahead and violate him. I like the way
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the Judge does in these situations, you know, maybe put him in County Jail for

about a year and put him back on Community Corrections and see what he will

do.”

On appeal, the State did not submit in a separate issue that the trial

court erred by failing to increase Defendant’s sentence. It is correct that the

State does not need to file a separate notice of appeal in order to raise a

sentencing issue when the Defendant has appealed to this court. State v.

Russell, 800 S.W.2d 169, 170-72 (Tenn. 1990). However, under applicable

appellate rules, the State must still specify an issue for appellate review, submit

supporting argument, and identify appropriate relief. State v. Hayes, 894 S.W.2d

298, 300 (Tenn. Crim. App. 1994). 

The trial court could have considered an increase in the Defendant’s

sentence, but declined to do so. The State did not urge in the trial court or in this

court that the sentence should be increased. Mentioned in this record, and

conceded to by the Defendant, is the fact that he is not entitled to credit for time

in which he may have been in an “absconded” status while sentenced to the

Community Corrections Program. I agree that the language of Tennessee Code

Annotated section 40-36-106(e)(4) supports the proposition that Defendant is not

entitled to credit for time periods in which he was in an “absconded” status from

the Community Corrections Program. 

Since the issue of whether or not to increase Defendant’s sentence

was not addressed on appeal, I am of the opinion that this case should be

remanded to the trial court for a new hearing limited to the sole purpose of
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determining the amount of credit to which Defendant is entitled by statute for time

actually served in the Community Corrections Program. 

____________________________________

THOMAS T. WOODALL, Judge