              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE

                            JANUARY 1998 SESSION



STATE OF TENNESSEE,                   )
                                      )
             Appellant,               )    No. 03C01-9704-CC-00136
                                      )                                  FILED
                                      )    Anderson County               July 7, 1999
v.                                    )
                                                                      Cecil Crowson, Jr.
                                      )    Honorable James B. Scott, Jr., C ourt
                                                                 Appellate
                                      )    Judge                       Clerk
MELISSA D. ANDERSON,                  )
                                      )    (Community Corrections)
             Appellee.                )



For the Appellant:                         For the Appellee:

John Knox Walkup                           J. Thomas Marshall, Jr.
Attorney General of Tennessee              District Public Defender
    and                                    101 S. Main Street
Timothy F. Behan                           Clinton, TN 37716
Assistant Attorney General of Tennessee
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493

James N. Ramsey
District Attorney General
   and
Jan Hicks
Assistant District Attorney General
127 Anderson County Courthouse
Clinton, TN 37716




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              This case presents the question of whether a trial court without a

community corrections program in its district has the authority to impose a community

corrections sentence upon the resident of another judicial district to be served in the

defendant’s judicial district whose community corrections program agrees to accept

supervision responsibility. The state appeals as of right from the Anderson County

Criminal Court’s imposition of a three-year community corrections sentence upon the

defendant, Melissa D. Anderson, to be served in a program in Roane County, where the

defendant resides. The state contends that the trial court did not have the authority to

impose such a sentence. We affirm the judgment of conviction.



              The defendant was convicted upon her plea of guilty to selling cocaine.

She had abused drugs and was on medication at the time of sentencing. Anderson

County has no community corrections program. A community corrections officer from

Roane County, which is in another judicial district, testified that his program was willing

to accept and supervise the defendant. The trial court recognized the program and

placed the defendant in that program.



              The state contends that although there is neither case law nor legislation

directly on point, analogous law supports its position that the trial court erred. First, it

cites State v. Nelson Joseph LeClair, No. 01C01-9603-CC-00104, Rutherford County

(Tenn. Crim. App. Jan. 31, 1997), app. denied (Tenn. Sept. 8, 1997) (concurring in

results only), in which the defendant appealed the trial court’s refusal to allow him to

serve his misdemeanor sentence in Davidson County, which has a work release

program instead of the Rutherford County workhouse, which has no such program.

This court stated that it found no support for the defendant’s argument that the request

should have been granted nor “any authority giving a trial judge the right to order a


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misdemeanor sentence to be served in a county other than the one in which the offense

occurred.” Id., slip op. at 3. The court added that work release is a form of probation

and is a privilege, not a right. Id. The state argues that the analogy applies in this

felony case.



               The defendant responds by distinction. She notes that LeClair involved a

misdemeanor and that Tenn. Code Ann. § 41-2-103 requires the trial court to sentence

misdemeanants to the workhouse of the county of conviction if a workhouse sentence

is imposed. She asserts that no similar requirement exists for community corrections

sentences. Also, she argues that her felony community corrections sentence is more

analogous to felony probation under Tenn. Code Ann. § 40-35-309, which allows

supervised probation outside the trial court’s jurisdiction for residents of another judicial

district. Finally, she notes that LeClair did not involve either outside authorities

agreeing to supervise the defendant or the sentencing court granting such a sentence.



               Relative to probation under Tenn. Code Ann. § 40-35-309, the state notes

that it allows a trial court to place a defendant on supervised probation in another

judicial district with the express option of either retaining jurisdiction or transferring it to

the appropriate court in the resident district. No similar statute exists regarding a

community corrections sentence. It also cites State v. Malone, 928 S.W.2d 41, 44

(Tenn. Crim. App. 1995), in which this court held that the defendant’s parole from one

sentence under the Board of Paroles’ jurisdiction did not bar the trial court from

revoking another suspended sentence. The court concluded that the Board of Paroles

did not take over the trial court’s authority relative to a fully-suspended sentence. The

state claims that as with the Board of Paroles, the trial court in the present case could

not place its authority with the Roane County Community Corrections Program.




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              The defendant responds that the holding in Malone is irrelevant to the

present inquiry. She notes that the trial court in her case has not transferred jurisdiction

over her sentence to Roane County.



              Finally, the state points to the Community Corrections Act. It notes that

under Tenn. Code Ann. § 40-36-102(4), the “community” includes the counties that

comprise a judicial district and that a goal of the act is to “[p]romote accountability of

offenders to their local community by requiring . . . community service restitution to local

governments,” Tenn. Code Ann. § 40-36-104(2). It asserts that the defendant does not

owe service to Roane County but to Anderson County, the venue of her crime.



              In kind, the defendant notes that the goal of the act cited by the state

makes offenders accountable to their local communities and assists offenders in

becoming contributing members of their community. See Tenn. Code Ann. § 40-36-

104(2). She asserts that the act provides no requirement that an offender must be

convicted in a county that has a community corrections program before such a program

may be invoked. Also in support, she states that this court has affirmed the Hamblen

County Criminal Court in sentencing a defendant to the community corrections program

in Sullivan County, a separate judicial district. See State v. Tom Hale, No. 03C01-

9411-CR-00404, Hamblen County (Tenn. Crim. App. Aug. 4, 1995). However, we sense

that the facility involved in Hale has contracted with several judicial districts to be part of

their respective community corrections programs. See State v. Robert Joseph Bacon,

No. 03C01-9708-CR-00356, Sullivan County (Tenn. Crim. App. Aug. 17, 1998); Tenn.

Code Ann. § 40-36-302(a)(2).



              As a starting point, we heed our supreme court’s statement that an

appellate court “cannot affirm a sentence that is not expressly authorized by the

Legislature.” State v. Davis, 940 S.W.2d 558, 562 (Tenn. 1997). Thus, the trial court’s



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sentencing authority must be statutorily based. Pursuant to Tenn. Code Ann. § 40-35-

104(c)(9), a trial court has the authority to sentence an offender “to a community based

alternative to incarceration in accordance with the provisions, including eligibility

requirements, of chapter 36 of this title,” which contains the Community Corrections Act.

In essence, this means that a trial court is empowered to impose a community

corrections sentence within the limits allowed by the act.



              The goals of the Community Corrections Act are stated in Tenn. Code

Ann. § 40-36-104 as follows:

              (1) Maintain safe and cost efficient community correctional
              programs, which also involve close supervision of offenders;

              (2) Promote accountability of offenders to their local
              community by requiring direct financial restitution to victims of
              crimes and community service restitution to local governments
              and community agencies;

              (3) Fill gaps in the local correctional system through the
              development of a range of sanctions and services available for
              the judge at sentencing;

              (4) Reduce the number of nonviolent felony offenders
              committed by participating counties to correctional institutions
              and jails by punishing these offenders in noncustodial options
              as provided in this chapter;

              (5) Provide opportunities for offenders demonstrating special
              needs to receive services which enhance their ability to provide
              for their families and become contributing members of their
              community;

              (6) Encourage the involvement of local officials and leading
              citizens in their local correctional system; and

              (7) Promote the development of community corrections
              programs which are tailored to the specific needs of each
              participating county, and which are creative and innovative,
              within this state.

Unquestionably, the act is essentially geared to programs within a given judicial district.

As the state notes, the act defines “community” in terms of a judicial district. See Tenn.

Code Ann. § 40-36-102(4). However, many of the goals of the act are met by allowing

a defendant to serve a community corrections sentence in the defendant’s county of



                                              5
residence, which has a program willing to supervise the defendant. Although such a

sentence does not directly benefit the sentencing judicial district, it certainly benefits the

defendant’s community, fills gaps in local correctional systems, reduces prison

overcrowding, and provides opportunities for the defendant to become a contributing

member of the defendant’s own community.



              The state seeks to analogize community corrections to work release and

parole, but Tennessee courts have recognized that community corrections is more

similar to probation. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (holding that

a community corrections sentence and probation “are sufficiently similar in nature” to

have the same standard of review for revocation purposes); Bentley v. State, 938

S.W.2d 706, 714 (Tenn. Crim. App. 1996) (holding that similarities between a

community corrections sentence and probation justify using similar revocation

procedures). As the defendant has noted, the trial court has not ceded jurisdiction to

Roane County.



              As the state points out, Tenn. Code Ann. § 40-35-309 allows a sentencing

court to place the defendant on probation under the supervision of probation personnel

in another judicial district in which the defendant resides. However, the state fails to

note that participation in a community corrections program may be a condition of

probation. See Tenn. Code Ann. § 40-36-106(f). It makes no sense to allow the

sentencing court to retain jurisdiction over the defendant who is in a community

corrections program in another judicial district as a condition of probation while

prohibiting the defendant from entering the same community corrections program under

a community corrections sentence when the program is able to accept supervision of

the defendant. We hold that a trial court without a community corrections program in its

district has the authority to impose a community corrections sentence to be served in a




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defendant’s home judicial district whose community corrections program agrees to

accept supervision responsibility.



                 Based on the foregoing and the record as a whole, we affirm the judgment

of conviction.




                                                 Joseph M. Tipton, Judge

CONCUR:



Gary R. Wade, Presiding Judge



William M. Barker, Special Judge




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