        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE              FILED
                       FEBRUARY SESS ION, 1997           April 7, 1998

                                                  Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk
STATE OF TENNESSEE,      )        C.C.A. NO. 03C01-9601-CC-00031
                         )
      Appellee,          )
                         )
                         )     SEVIER COUNTY
VS.                      )
                         )     HON . BEN W. HO OPE R, II
RANDALL DEAN COOPER, )         JUDGE
a/k/a TIMOTHY D. COOPER )
      Appe llant.        )     (Dire ct Ap pea l-Co mm unit y
                  ) Corrections)




FOR THE APPELLANT:                FOR THE APPELLEE:

DENNIS C. CAMPBELL                JOHN KNOX WALKUP
Assistant Public Defender         Attorney General and Reporter
Fourth Judicial District
P. O. Box 416                     DARIAN B. TAYLOR
Dandridge, TN 37725               Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243

                                  AL SCHMUTZER, JR.
                                  District Attorney General

                                  G. SCOTT GREEN
                                  Assistant District Attorney
                                  Sevierville, TN 37862



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                    OPINION

       The Sevier Coun ty Circuit Court removed Appellant, Randall Dean Cooper,

from particip ation in the Community Corrections program upon finding Appellant

violated certain program conditions. The trial judge resentenced Appellant to ten

years as a Ra nge III offender, from an original sentence of eight years as a

Range III. On appeal, Appellant presents the following issues: 1) whether the trial

court abus ed its d iscretio n by inc reasin g App ellant’s senten ce to ten years in the

Department of Corrections after finding Appe llant viola ted the cond itions o f his

eight year Co mm unity Cor rections s entenc e; 2) whe ther App ellant was denied

a statutory or constitutional right to a sentencing hearing after the trial court found

him in violation of the requirements of the Community Corrections program; and

3) whether the trial cou rt erred by refusing Appellant credit for the time he served

pretrial and for time se rved in the Com munity C orrection s progra m.



       After a review of the record we reverse the judgment of the trial court, and

remand this case for a new sentencing hearing.



                             FACTUAL BACKGROUND



       Appellant was indicted for theft over the value of $1,000, fleeing from a law

enforcement officer, driving on a suspended license, and driving under the

influence of an intoxicant. He pled guilty to driving under the influence of an

intoxicant and theft over $1,000. According to the plea agreement, Appellant

agreed to serve eight years as a Range III offender. The parties agreed that the




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sentence shou ld be s erved in the S evier C ounty Jail 1 . After s erving appro ximate ly

six month s, Appe llant reque sted an d receive d placem ent in the C omm unity

Corrections program. At that time, the trial court also ordered the App ellant to

begin paying restitution of $3,500.00 . Five months later, the trial court issued a

warrant for the Appellant based upon allege d violations of the Co mm unity

Correc tions Act.



        The trial court conducted a hearing on August 21 and 23, 1995, in which

the court fo und A ppella nt had failed to report to his program counselor. The trial

court removed Appellant from the Community Corrections program and

sentenced Appellant to serve ten years in the Tennessee Department of

Corrections.



                                    INCREASE IN SENTENCE



        Appellant concedes that he broke the rules of the Community Corrections

program, but he co ntends the court ab used its discre tion by in creas ing his

original sentence. He argues that a violation fo r failure to report is merely a

technical violation an d is not of the severity of a violent act or an unlawful act. He

maintains that the trial c ourt er red in not following the procedure for sentencing

set out in T .C.A. § 4 0-35-21 0.




1
 The origin al sen tenc e wa s eigh t years of inc arce ration in a co unty ja il. Bec aus e this origin al
sentence is not the subject of a dispute in this appeal we need not address the propriety of such a
sentence. However, this court is at a loss to understand how, in the absence of a sentence of
split confinement, a sentence of eight years can legally be ordered served in a county jail. See
Tenn. Code Ann. Sec. 40-35-314.

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       This court conducts a de novo review of all appeals involving sentencing

issues, according the trial court a presumption of correctness upon a showing

that the trial c ourt follo wed th e statu tory sch eme in imposing the sentence. T.C.A.

§ 40-35-40 1(d).



       The statute which gr ants the tria l court’s au thority over such proceedings

as the one sub judice provides that:

              The court shall also possess the power to revoke
       the sentence imposed at any time due to the conduct of
       the defendant..., and the court may resentence the
       defendant to any appropriate sentencing alternative,
       including incarceration , for any p eriod of time up to the
       maximum sentence provided for the offense committed,
       less any time actually served in any community based
       alternative to incarcera tion.


T.C.A . § 40-36 -106(e)( 4). In State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App.

1996), this court stated:

                     The purpose of this statute is to permit a trial
              court to impose a new sentence if the nature,
              circumstances, and frequency of the accused’s
              violations warrant a different type of alternative
              sentence or incarce ration. Ho wever th e provisions of
              the statute do no t perm it a trial court to arbitra rily
              establish the length of the new sentence. The sta tute
              shou ld not be used by the trial courts for the sole and
              exclusive purpose of punishing an accused for violating
              provisions of a community corrections sentence.

       If the trial court imposes a sente nce th at exce eds th e origin al sen tence , it

must conduct a sentencing hearing pursuant to the Tennessee Criminal

Sentencing Reform Act of 19 89. Ervin, 939 S.W.2d at 583. The sentence must

be based on (1) th e evide nce in the rec ord of th e trial, (2) the sentencing hearing,

(3) the presentence report, and (4) the record of prior felony convictions filed by




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the district attorney genera l with the court as required by § 40-35-202(a). T.C.A.

§ 40-35 -210(g); see Ervin, 939 S.W.2d at 584.



      In this case, the trial court did not follow the sentencing procedures set

forth in the 1989 Sentencing Act. It did not address the purposes or sentencing

considerations of the Act. Nor did the trial court set forth its findings with respect

to enhan ceme nt and m itigating facto rs. Rathe r, the trial cour t’s decision to

enhan ce the se ntence rested so lely on Ap pellant’s failu re to repo rt.



      W e recog nize that there may be valid grounds for the enhancement of

Appe llant’s sentence. The record includes a presentence report that states that

the defendant has a prior criminal record and previous history of unwillingness

to comply with the conditions of a sentence involving release into the comm unity.

See T.C.A. § 40-35-114(a) and (8). However, the record does not contain a

transcript of the proceedings of the guilty plea subm ission and the initial

sentencing hearing.



      Given the state of the record , this co urt can not co nduc t the sta tutorily

mandated de novo review of the s enten ce im pose d by the trial court upon

revocation of the comm unity corre ctions se ntence . See Ervin, 939 S.W.2d at

584-85. We therefore reverse and remand this case for a new sente ncing

hearing consistent with the principles outlined in this opinion.




                                          -5-
       In view of our disposition of this appeal we pretermit consideration of

Appe llant’s remaining issu es which de al with the proced ure at the hearing which

forms the ba sis of th is app eal.



                                     ____________________________________
                                     JERRY L. SMITH, JUDGE


CONCUR:


___________________________________
JOSEPH M. TIPTON, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




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