        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              JULY SESSION, 1998         December 8, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9707-CC-00311
                                )
      Appellee,                 )
                                )
                                )    MAURY COUNTY
VS.                             )
                                )    HON. JAMES L. WEATHERFORD
IVAN JIMENEZ,                   )    JUDGE
                                )
      Appe llant.               )    (Dire ct Ap pea l - Co mm unit y
                                )    Corrections Revocation)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN E. HERBISON                     JOHN KNOX WALKUP
2016 E ighth Ave nue So uth          Attorney General and Reporter
Nashville, TN 37204
                                     DARYL J. BRAND
                                     Assistant Attorney General
                                     425 Fifth Avenu e North
                                     Nashville, TN 37243-0493

                                     MIKE BOTTOMS
                                     District Attorney General

                                     LEE BAILEY
                                     Assistant District Attorney
                                     P. O. Box 1619
                                     Columbia, TN 38464




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


      On June 14, 1994, Appellant, Ivan Jim enez, p led guilty in M aury Co unty

to the sale o f cocaine , a Class C felony. In itially the trial court s entenced

Appellant to three years, six mo nths to be se rved in incarc eration and th e

remainder to be served on probation. The trial court also fined Appellant $2,000.

The sentence was to run concurrent to sentences from a different Maury Coun ty

case, to two Giles County cases, and to two Lawrence County cases. On October

12, 1994, the trial court entered an amended judgment, ordering App ellant to

three years in Community Corrections, with the first six months of that sentence

to be se rved in the county jail. The other provisions of the judgment remained the

same. On August 13, 1996, the trial court revoked Appellant’s probation and

ordered that he serve 6 0 days in the co unty jail before being released on

community corrections. On January 6, 1997, the trial court issued a warrant

against Appellant for violation of the conditions of Community Corrections. After

a hearing on April 24, 1997, the trial court revoked Appellant’s comm unity

corrections sentence and ordered that “he go into the custody of the sheriff to

serve the sentence previously imposed.” Appellant appeals from this order of

revocation, raising two issues for review:



      1.     Whether the lac k of a jud gme nt in the records setting forth the
             conditions of Appellant’s comm unity corrections sentence precludes
             revocation of the sentence, and
      2.     Whether Appellant’s sentence after revocation should exceed three
             years.


      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.




                                         -2-
                                       FACTS




       Appellant’s original plea was part of a package deal with the State which

resolved several drug charges against him in Maury, Giles, and Lawrence

Counties. Appellant entered Community Corrections and was monitored b y Mr.

Glen Smith. Mr. Smith testified at the revocation hearing, stating that he

supervised Appellant until September 1995 when Appellant tested positive for

marijuana use.     Mr. Smith also recounted that Appe llant faile d to rep ort in

consistently, he failed to pay fines, and failed to do comm unity service work. M r.

Smith stated that in his affidavit for revocation he alleged that Appellant had (1)

failed to pay supervision fees, (2) failed to p ay court c osts, (3) failed to main tain

gainful employment, (4) failed to pay fines, and (5) failed to do community service

work. Mr. Smith te stified that wh en a de fendan t is assigne d to Com munity

Corrections, he fills ou t a beh aviora l contra ct, is told he must pa y a certa in

amount each mo nth to the court clerk a nd bring the rec eipt to the case o fficer,

must pay all child support payments and m ust prod uce pa y stubs to ve rify

emplo ymen t. Appellant never brought any receipts or pay stubs to Mr. Smith.

Appellant never follow ed up o n sugg estions re garding where to do com munity

service, and to Mr. Smith’s knowledge has not held a job since beginning the

Community Corrections program.



       Appellant testified that he had recently obtained a job at the Murra y Ohio

plant in Lawrenceburg. He stated that he was up to date with child sup port

payments, but conceded that his father had made the payments. Appellant

testified that he had no physical impairment which would prevent him from

working.

                                          -3-
                    I. Conditions of Community Corrections




       Appellant argues that without a judgment before the trial judge setting out

the conditions of the community corrections sente nce, th e judg e cou ld not make

a conscientious decision as to whether the sentence should be revoked and

incarceration ordered. In this particular case we must disagree.



       First, this argument has been waived by Ap pellan t’s failure to even suggest

in the trial court that the lack of a judgment setting forth the conditions of the

sentence precluded revocation of the sentence. Failure to raise this issue in the

trial court where any prejudicial effect of the alleged error could have been

prevented waives a ppellate re view of this iss ue. Ten n. R. Ap p. P. 36(a ); See,

e.g. Jones v. State, 915 S.W .2d 1,2 (Ten n. Crim. App . 1995).



       Moreover, the judgment of conviction provides for $2,000 in fines, while

a supervision fee of $1 5 per m onth is m andate d by statu te. See, Tenn. Code

Ann. § 40-36-306(a). Thus, Appellant was aware, even absent an order setting

forth other conditions of his sentence, that he was under an obligation to pay both

the fines and the supervision fee. He failed to pay either of these obligations and

his failure to do so co nstitutes su fficient grou nds to re voke Ap pellant’s co mm unity

corrections sentence. State v. William Lewis Reynolds, Giles Co., No. 01C01-

9309-CC-00306 (Tenn . Crim. A pp., filed April 7, 1994, at Na shville), app. denied

(Tenn., Jun e 27, 1994 ).



       This issu e is withou t merit.




                                           -4-
              II. Imposition of Sentence Following Revocation




      Appellant argues that the trial court erred in sentencing h im to six years

following revocation of his community corrections sentence when he had

originally received a three year sentence. However, we find that the sentence

following revocation is the original three year sentence and no more.



      The confusion on this point arose from an apparent misstatement of the

trial judge at the revocation hearing. The trial judge stated:



             “I’m going to revoke his community corrections. The
             sentence previously imposed, that is a six year
             sentence, will be served. he’s had his ch ance every
             way that I see he can have one. S o his com munity
             correction s progra m is revo ked.”


      The State concedes that the trial judge missp oke in referring to a six year

sentence and th at the s enten ce pre viously imposed was three years. Indeed, the

actual court o rder re voking com mun ity corre ctions refers only to the sentence

“previously imposed,” without specifying a term of years.



      Although under some circumstances a trial court may, upon revocation of

a community corrections sentence, impose a term of incarceration up to the

maximum sentence prescribed for the offense, Tennessee Code Annotated § 40-

36-106(e)(4 ), it appears from this record that Appellant’s sentence is three years,

not six and we so hold.




                                        -5-
    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




                                     -6-
