             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                             OCTOBER 1999 SESSION



STATE OF TENNESSEE,                     )
                                        )       C.C.A. No. W1999-01845-CCA-R3-CD
      Appellee,                         )

v.
                                        )
                                        )
                                        )
                                                Shelby County
                                                                FILED
                                                Honorable James C. Beasley, Jr., Judge
VINTON T. MACLIN,                       )                     December 16, 1999
                                        )       (Sentencing)
      Appellant.                        )                     Cecil Crowson, Jr.
                                                             Appellate Court Clerk




FOR THE APPELLANT:                              FOR THE APPELLEE:

WILLIAM D. MASSEY                               PAUL G. SUMMERS
3074 East Street                                Attorney General & Reporter
Memphis, TN 38128
                                                PATRICIA C. KUSSMANN
                                                Assistant Attorney General
                                                425 Fifth Avenue North
                                                Nashville, TN 37243-0493

                                                WILLIAM L. GIBBONS
                                                District Attorney General

                                                PAULA WULFF
                                                Assistant District Attorney General
                                                201 Poplar Avenue, Suite 301
                                                Memphis, TN 38103-1947




OPINION FILED: __________________________________________


VACATED AND REMANDED


ALAN E. GLENN, JUDGE




                                   OPINION

      The defendant, Vinton T. Maclin, entered pleas of guilty in the Shelby County

Criminal Court to the misdemeanor charge of unlawful possession of a weapon, two felony

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charges of unlawful possession of a controlled substance with intent to sell (occurring on

different dates), and unlawful possession of a handgun while in a public place. Pursuant

to a negotiated plea agreement, the sentences in these cases were to be served
concurrently with each other for an effective sentence of two years and total fines of

$4,100. The defendant filed a petition to suspend the sentences. The trial court denied

the petition and ordered that the defendant be incarcerated for 120 days and then be
placed in the Community Corrections Program for two years. The defendant timely

appealed, asking that he be placed on probation, or, in the alternative, that the120-day

sentence be served on weekends. Based upon our review, we find that the sentences are
in violation of Tenn. Code Ann. § 40-20-111(b) because the two possession of a controlled

substance with intent to sell charges were committed successively and after the defendant

had been released on bail on the first charge. Accordingly, the defendant could not receive
concurrent sentences, except for the third and fourth convictions. Thus, we vacate the

judgment of the trial court and remand this matter for further proceedings in accord with

this opinion.


                                         FACTS

        The following are the offenses for which the defendant was indicted and sentenced

to concurrent sentences following his pleas of guilty. On July 7, 1997, he was charged with

unlawful possession of a weapon and was released on bond that same day. This charge
resulted in Indictment 98-02512, to which the defendant entered a plea of guilty and

received a sentence of thirty days and a fine of $50.



        On January 13, 1998, the defendant was charged with unlawful possession of a

controlled substance with intent to sell and was released on this charge the following day.

This arrest resulted in Indictment 98-08594, to which the defendant was sentenced to
confinement for eighteen months and ordered to pay a fine of $2,000, following his plea

of guilty.



        The defendant next was arrested on June 7, 1998, and charged with unlawful
possession of a controlled substance with intent to sell and unlawful possession of a

handgun in a public place. The following day he was released on bond. This arrest

resulted in Indictments 98-13770 (unlawful possession of a controlled substance) and 98-
13771 (unlawful possession of a handgun in a public place). Following his guilty pleas to

these two charges, the defendant was sentenced, respectively, to two years and a fine of


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$2,000 and to thirty days and a fine of $50.



      The defendant entered pleas of guilty in each of these offenses, pursuant to a
negotiated plea agreement, and received concurrent sentences. He appealed the trial

court’s order that he should serve 120 days before being placed in the Community

Corrections Program, arguing that the sentences should be probated or that, in the
alternative, the 120-day sentence should be served on weekends. Because we find that

Tenn. Code Ann. § 40-20-111(b) mandates that the sentences for the two drug charges

be served consecutively with each other, as well as with the 1997 weapon possession
charge, we cannot address the defendant’s request for alternative sentencing.



                                        ANALYSIS
      From the record, it is apparent that after the defendant had been initially released

on bail for the charge which resulted in Indictment 98-02512, he was arrested for the

charge resulting in Indictment 98-08594, and this also occurred with regard to Indictments
98-13770-1. Thus, although the plea bargain agreement provided that the four sentences

imposed upon the defendant were to be served concurrently, Tennessee law requires that

the sentences for episodes two and three be served consecutively with each other and with

that imposed for the first episode.



       Tennessee Code Annotated § 40-20-111(b) requires that sentences for felonies

committed while a defendant has been released on bail for previous charges must be

served consecutively with the sentence for the previous charge:
              In any case in which a defendant commits a felony while such
              defendant was released on bail in accordance with the
              provisions of chapter 11, part 1 of this title, and the defendant
              is convicted of both such offenses, the trial judge shall not
              have discretion as to whether the sentences shall run
              concurrently or cumulatively, but shall order that such
              sentences be served cumulatively.



       Likewise, Rule 32(c)(3) requires that:

              Where a defendant is convicted of multiple offenses from one
              trial or where the defendant has additional sentences not yet
              fully served as the result of the convictions in the same or
              other court and the law requires consecutive sentences, the
              sentence shall be consecutive whether the judgment explicity
              so orders or not. This rule shall apply:

                     (A) To a sentence for a felony committed while
                         on parole for a felony;

                     (B) To a sentence for escape or for a felony
                         committed while on escape;

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                    (C) To a sentence for a felony where the
                        defendant was released on bail and the
                        defendant is convicted of both offenses;
                        and

                    (D) Any other ground provided by law.

Tenn. R. Crim. P. 32(c)(3).


      Thus, the law mandated that these sentences be served consecutively. State v.

Blanton, 926 S.W.2d 953, 961 (Tenn. Crim. App. 1996). Since the defendant entered his
pleas of guilty with the belief that all sentences would be served concurrently, we do not

know whether he would have done so had he known of the requirements regarding

consecutive sentencing. See State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).

Accordingly, we vacate the judgments and remand the matter to the trial court to allow the

defendant the opportunity to withdraw his pleas of guilty.




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      The judgments are vacated, and this matter is remanded to the trial court for further

proceedings in accord with this opinion.



                                                __________________________________
                                                ALAN E. GLENN, JUDGE


CONCUR:




__________________________________
JOHN H. PEAY, JUDGE




__________________________________
NORMA McGEE OGLE, JUDGE




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