         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 18, 2004

             STATE OF TENNESSEE v. BILLY WAYNE QUILLEN

                  Direct Appeal from the Criminal Court for Greene County
                          No. 03CR043     James E. Beckner, Judge



                  No. E2004-00417-CCA-R3-CD - Filed September 27, 2004


The defendant, Billy Wayne Quillen, pled guilty to two counts of attempt to obtain a controlled
substance by fraud and was placed on judicial diversion for two years. His diversion was
subsequently revoked, and the trial court reinstated his original two-year sentence to be served at
100%. On appeal, the defendant argues that the trial court erred in ordering him to serve his sentence
at 100% without release eligibility, and the State agrees. Based upon our review, we modify the
defendant’s sentence to reflect release eligibility after service of 30% of the two-year sentence.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed as
                                         Modified

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JAMES
CURWOOD WITT , JR., JJ., joined.

Greg W. Eichelman, District Public Defender, and Michael A. Walcher, Assistant Public Defender,
for the appellant, Billy Wayne Quillen.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
C. Berkeley Bell, Jr., District Attorney General; and Cecil C. Mills, Jr. and Eric D. Christiansen,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        The facts surrounding the defendant’s crime are gleaned from his motion to waive grand jury
investigation and to proceed by information:
               Count 1

               That, on December 30, 2002, in Greene County, Tennessee, the
               defendant committed the offense of attempting to obtain a controlled
               substance by fraud, by knowingly attempting to obtain possession of
               a controlled substance, to wit: Lortab, a Schedule III controlled
               substance, by misrepresentation, to wit: by telephoning Corley’s
               Pharmacy and representing that he was Dr. Michael Monger
               prescribing Lortab for Danny Gregg and then presenting himself to
               Corley’s Pharmacy representing that he was Danny Gregg in order to
               pick up the prescription; a Class D felony, in violation of T.C.A. §
               53-11-402(a)(3), and against the peace and dignity of the State of
               Tennessee.

               Count 2

               That, on January 3, 2003, in Greene County, Tennessee, the defendant
               committed the offense of attempting to obtain a controlled substance
               by fraud, by knowingly attempting to obtain possession of a
               controlled substance, to wit: Lortab, a Schedule III controlled
               substance, by misrepresentation, to wit: by telephoning Central Drug,
               and representing that he was Dr. Michael Monger prescribing Lortab
               for Chris Adams and then presenting himself to Central Drug
               representing that he was Chris Adams in order to pick up the
               prescription; a Class D felony, in violation of T.C.A. § 53-11-
               402(a)(3), and against the peace and dignity of the State of Tennessee.

        On April 8, 2003, the defendant entered guilty pleas to two counts of attempt to obtain a
controlled substance by fraud and was granted judicial diversion. He was placed on probation for
two years and ordered to perform 225 hours of community service work and to attend a drug
rehabilitation program. Subsequently, on November 13, 2003, a probation violation affidavit was
filed based upon the defendant’s arrest for theft over $500 and his positive drug screen for marijuana.
Following a hearing on January 23, 2004, the trial court revoked the defendant’s probation and
reinstated his two-year sentence to be served at 100% less earned credits.

                                            ANALYSIS

        The defendant’s sole issue on appeal is whether the trial court erred in ordering him to serve
his original two-year sentence at 100%. The State concedes that the defendant, as a Range I,
standard offender, must be released after service of 30% of his sentence.

        Tennessee Code Annotated section 40-35-313 provides that, following a determination of
guilt by plea or by trial, a trial court may, in its discretion, defer further proceedings and place a


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qualified defendant on probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-
313(a)(1)(A) (2003). Tennessee Code Annotated section 40-35-313(a)(2) provides, in pertinent part,
“Upon violation of a condition of the probation, the court may enter an adjudication of guilt and
proceed as otherwise provided.”

       At the conclusion of the defendant’s probation violation hearing, the trial court ruled:

               I have no choice in the matter, being consistent with what I do in
               every case, and given the presentence report in this case, but to revoke
               probation and reinstate the sentence to be served a hundred percent
               subject to all credits to be earned. You can get 20 percent credit just
               for not causing any problem and you can also get other credits but
               you’re in custody to serve your sentence.

        As to release eligibility, Tennessee Code Annotated section 40-35-501(a)(3) provides that
“inmates with felony sentences of two (2) years or less shall have the remainder of their original
sentence suspended upon reaching their release eligibility date.” Regarding Range I, standard
offenders, Tennessee Code Annotated section 40-35-501(c) provides that release eligibility “shall
occur after service of thirty percent (30%) of the actual sentence imposed less sentence credits earned
and retained by the defendant.” Accordingly, as a Range I, standard offender, we concur with the
defendant and the State that the defendant can only be required to serve 30% of his sentence, not
100% as ordered by the trial court.

                                          CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the trial court’s order revoking
the defendant’s diversion but modify his sentence to reflect release eligibility after service of 30%
of the two-year sentence.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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