        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 2, 2016


          STATE OF TENNESSEE v. PRESTON RASHAD ROYAL

                 Appeal from the Circuit Court for Madison County
                        No. 1532    Donald H. Allen, Judge




                No. W2015-01334-CCA-R3-CD - Filed April 12, 2016
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Defendant, Preston Rashad Royal, pled guilty to thirteen counts of burglary of an
automobile and received an effective sentence of six years to be served on supervised
probation after one year of confinement in the custody of the Tennessee Department of
Correction (“TDOC”). Defendant argues that his sentence is illegal because it directly
contravenes Tennessee Code Annotated section 40-35-122(a). The State concedes error.
We conclude that Defendant’s sentence is illegal, vacate the judgments of the trial court,
and remand the case for a new sentencing hearing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed
                                  and Remanded

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and CAMILLE R. MCMULLEN, JJ., joined.

George Morton Googe, Public Defender, and Gregory D. Gookin, Assistant Public
Defender, for the appellant, Preston Rashad Royal.

Herbert H. Slatery III, Attorney General and Reporter; Meredith Devault, Assistant
Attorney General, Senior Counsel; Jerry Woodall, District Attorney General; and Brian
M. Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION
       On May 4, 2015, Defendant pled guilty to thirteen counts of burglary of an
automobile, a Class E felony. T.C.A. § 39-14-402(d). For each conviction, the trial court
imposed a sentence of two years to be suspended to supervised probation after four
months in the custody of TDOC. Three of the convictions were run consecutively to each
other but the remaining convictions were run concurrently, resulting in an effective
sentence of six years to be served on probation after one year in confinement. At the
sentencing hearing, Defendant raised an objection to the legality of the sentences, which
was overruled by the trial court. He then filed a timely appeal to this Court.

      Defendant argues that his sentences are illegal because they contravene Tennessee
Code Annotated section 40-35-122(a), which provides:

      [T]he judge sentencing a defendant who commits a non-violent property
      offense, as defined in subsection (c) . . . shall not be authorized to impose
      the sentencing alternatives of continuous confinement in a local jail or the
      department of correction as authorized by § 40-35-104(c)(5), (c)(6), or
      (c)(8). However, the judge may sentence the defendant to any of the other
      sentencing alternatives authorized by § 40-35-104(c), which include, but
      are not limited to, periodic confinement, work release, community
      corrections, probation, or judicial diversion.

Subsection (c) of that statute classifies burglary of an automobile as a non-violent
property offense, which means that the only sentences available for Defendant were those
authorized by Section 40-35-104(c). Defendant did not qualify for any of the exceptions
to this statutory provision. See T.C.A. § 40-35-104(b).

       Defendant contends that the four-month portion of his sentences to be served in
the custody of TDOC are not authorized by Section 40-35-122(a) because those four
months constitute continuous confinement. He relies on State v. Astin D. Hill, No.
W2012-02147-CCA-R3-CD, 2014 WL 683892, at *4-5 (Tenn. Crim. App. Feb. 19,
2014), no perm. app. filed, in which this Court held that denial of alternative sentencing
for burglary of an automobile violated Section 40-35-122(a), where the statutory
exceptions were inapplicable to the defendant. The State concedes that Defendant’s
sentences violate the statute, and we agree. Section 40-35-122(a) specifically and
unequivocally omits the three continuous confinement provisions of Section 40-35-
104(c) from the sentences available for a non-violent property offender. Accordingly, the
portion of Defendant’s split sentences that the trial court ordered to be served by four
months of continual confinement was not authorized by statute and is illegal. See, e.g.,
State v. Devon Elliot Cruze, No. E2014-01847-CCA-R3-CD, 2015 WL 5064070, at *4
(Tenn. Crim. App. Aug. 27, 2015) (concluding that the defendant’s sentence of

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continuous confinement for sixty days with the balance on probation violated Section 40-
35-122(a)), no perm. app. filed.

       Because Defendant’s sentences violate Tennessee Code Annotated section 40-35-
122(a), the judgments of the trial court are vacated, and this case is remanded for a new
sentencing hearing, after which the trial court shall impose a legal sentence authorized by
our sentencing statutes.




                                                  _________________________________
                                                  TIMOTHY L. EASTER, JUDGE




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