         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE               FILED
                              APRIL 1998 SESSION               April 30, 1998

                                                            Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      ) C.C.A. No. 03C01-9707-CC-00269
      Appellant,                      )
                                      ) Jefferson County
V.                                    )
                                      ) Honorable Ben W. Hooper, II, Judge
                                      )
JESSE JAMES GILBERT, JR.,             ) (State Appeal - Sentencing)
                                      )
      Appellee.                       )




FOR THE APPELLANT:                       FOR THE APPELLEE:

John Knox Walkup                         Edward C. Miller
Attorney General & Reporter              District Public Defender

Timothy F. Behan                         Robert W. Scott
Assistant Attorney General               Assistant Public Defender
Criminal Justice Division                Fourth Judicial District
425 Fifth Avenue North                   P.O. Box 416
Nashville, TN 37243-0493                 Dandridge, TN 37725-0416

Al Schmutzer, Jr.
District Attorney General

James L. Gass
Assistant District Attorney General
Fourth Judicial District
P.O. Box 70
Dandridge, TN 37725-0070



OPINION FILED: ___________________


REVERSED AND REMANDED FOR RESENTENCING


PAUL G. SUMMERS,
Judge




                                  OPINION
      The appellee, Jesse James Gilbert, Jr., was convicted by a jury of rape in

the Criminal Court of Jefferson County. The court sentenced the appellee to

serve one year in the county jail, with the remainder of his sentence to be served

in the community corrections program. The state appealed. The issue is

whether the court erred in sentencing the appellant to community corrections

when he was convicted of a violent felony. We respectfully reverse the judgment

of the trial court and remand for resentencing.



       The appellee was convicted of rape, a class B felony. The sentencing

range for the appellant as a Range I, class B felon is eight to twelve years.

Tenn. Code Ann. §§ 39-13-503 (Supp. 1996) & 40-35-112(a)(2) (1990).



       The court sentenced the appellee to one year in the county jail followed by

seven years supervision pursuant to the Community Corrections Act (“the Act”)

codified at Tennessee Code Annotated §§ 40-36-101 through 306 (Supp. 1996).

The court began at the minimum sentence of eight years. The court found that

no enhancement factors applied. The trial court carefully considered the factors

required by the Criminal Sentencing Reform Act. See Tenn. Code Ann. §§ 40-

35-101 et seq. (Supp. 1996). He followed the procedure prescribed by the

sentencing act. The court stated his findings for the record. The court noted his

confidence in the appellee’s ability to reform. He warned the appellee that if he

should come back before the court because of sentence violations, then the

court could sentence him to a sentence greater than eight years. Tenn. Code

Ann. § 40-36-106(e)(4) (Supp. 1996).



       Both the state and appellee agree that the appellee does not qualify for

punishment under the Community Corrections Act codified at Tennessee Code

Annotated § 40-36-101-306 (Supp. 1996 ). One of the purposes of the Act is to

establish a policy within the state to punish selected, nonviolent felony offenders




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in front-end community based alternatives to incarceration, thereby reserving

secure confinement facilities for violent felony offenders. Tenn. Code Ann.

§ 40-36-103 (Supp. 1996). An offender must meet minimum criteria before the

court is required to consider punishment pursuant to the Act. The appellee does

not meet two of those criteria because he committed a violent offense and he

committed a felony offense involving a crime against a person. Tenn. Code

Ann. § 40-36-106(a)(2) & (3). Therefore, the sentence is not authorized by the

sentencing act.



       The state essentially argues that it is inconsistent to make defendants

convicted of rape eligible for straight probation but not eligible for stricter forms of

alternative sentencing such as community corrections. The appellee contends

that he is eligible for probation because he received an eight year sentence for

his crime. Tenn. Code Ann. § 40-35-303(a) (Supp. 1996). The appellee is not

presumed to be a favorable candidate for alternative sentencing because he was

convicted of a class B felony. Tenn. Code Ann. § 40-35-102(6) (Supp. 1996).

However, the trial court may still consider the appellee for probation pursuant to

Tenn. Code Ann. § 40-35-102(5).



        The adjudged sentence is not authorized by the legislature. While we

may agree with the reasoning of the state, a change in the sentencing act is

within the province of the legislature. Therefore, we respectfully remand this

case to the trial court for resentencing.




                                                  ______________________________
                                                  PAUL G. SUMMERS, Judge


CONCUR:



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_____________________________
JERRY L. SMITH, Judge




_____________________________
CURWOOD W ITT, Judge




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