intheco m co ctions p gra . T judge'sre nsid tionof the ent orre ther an m unity rre ro m he co era
defendant'ssentencewasbasedonanindictm ofthedefendant that washandeddow bythegrandjury soonaftertheoriginal ent n
sentencinghearing. Thejudgereasoned:
As I stated ea er, the factors of his age an his rli d apparent remorseandlikelihoodofrehabilitationprompted thisCourt toorder himtoservethat eight year sentencewith Com unityCorrectionsdespitethefact it wasacrim ofviol- m e ence. InsubstanceI saidthat if M Hill ever camebackbefore r. thisCourt onanythingelsethat I wouldinall likelihoodconsider hisrehabilitationtobenil, orthepossibilityof hisrehabilitationto benil. Andthat I wouldnot haveanychoicebut tosendhimto the De partmen of Co t rrections. Thereisnoevidenceheretoday, butthereisanindictm ent whichwashandeddownbyaGrandJurybasedonprobable cause. TheG Jury heardtestim sworntestim and rand ony, ony, based uponwhatit heardbelievedtherewas a probabilitythat acrim wascom ittedanda e m probabilitythat thisDefendant comm that crim -itted e. Giventhetotalityof all thefactsandcircum stancesthe Co believes that its sentencewasjust wrong. ThereforeI amam urt endingthesentence, and I amorderingtheeight year sentencetobeservedwiththeDepartm ofCorrection. ent
Giventhesestatem it isapparent thejudgeresentencedthedefendant basedonthenewindictm 2 ents, ent.
Thisisinspiteofthefact that, asthejudgepointedout, therewasnoevidenceof wrongdoingbythedefendant, onlyanindictment.
Thereareseve apparent erro concerningthesentencingandtheresentencingofthedefendant. It appears ral rs
tothisCourt that underthestatutory criteriaset outat T.C. A.§40-36-106(a), thedefendant wasnoteligiblefor asentencein
acomm correctionsprogram.3 Inaddition, even if thedefendant hadbeeneligiblefor acomm correctionssentence, unity unity
it isunclear whether thetrial judgehadtheauthoritytoam the defendant'ssentence.4 Inlight oftheforegoing, weremand end
We note that this indictment was later nol-prossed.
As the defendant was convicted of aggravated robbery and was sentenced to incarceration for a p revio us of fens e and there was no find ing on the re cord of an y sp ecia l need s, he is not an elig ible offender as set out in T.C.A. § 40-36-106(a).
We are of the opinion that if the defendant had not yet started serving his sentence, the judge could amend the sentence within thirty days of the original sentencing as long as the parties were given proper n otice. See Tinker v . State, 579 S.W.2d 905 (Tenn. Crim. App. 1979). If the defendant had already begun serving his sentence, the trial judge could only have revoked the community corrections senten ce with a proper re vocation hearing a nd prop er notice. See State v. Worley, No. 03C01-9608- CR-00322, Sullivan County (Tenn. Crim. App. filed August 29, 1997, at Knoxville). In any case, the defendant is required to be present at every stage of the trial, including sentencing. Tenn. R. Crim. P. 43(a). Although the record is not entirely clear, it appears that the defendant was not present at the rese nten cing hear ing an d the re is n o indic ation in the r eco rd tha t the d efen dan t waiv ed th at righ t. This
thiscaseforresentencinginaccordancewiththeprovisionsof theCrim SentencingReformActof 1989. inal
Insum,weaffirmthedefendant'sconvictionandremandthecasefor resentencing.
______________________________ J H H P A , J dg ON . EY u e
CNU: OCR
______________________________ THO AST.W DALL,Judge M OO
______________________________ L. TER LA RY FFER Special Judge TY,
alone w ould dep rive the co urt of the au thority to res entenc e the defe ndant.