             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                  FILED
                            JANUARY 1997 SESSION
                                                              October 16, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )
             Appellee,          )    No. 03C01-9602-CC-00062
                                )
                                )    Blount County
v.                              )
                                )    Honorable D. Kelly Thomas, Judge
                                )
JIMMY D. JOHNSON,               )    (Sentencing)
                                )
             Appellant.         )


For the Appellant:                   For the Appellee:

Raymond Mack Garner                  Charles W. Burson
District Public Defender             Attorney General of Tennessee
   and                                      and
Natalee Staats Hurley                Robin L. Harris
Assistant Public Defender            Assistant Attorney General of Tennessee
318 Court Street                     450 James Robertson Parkway
Maryville, TN 37804-4912             Nashville, TN 37243-0493

                                     Michael L. Flynn
                                     District Attorney General
                                             and
                                     Kirk Andrews
                                     Assistant District Attorney General
                                     363 Court Street
                                     Maryville, TN 37804-5906




OPINION FILED:____________________


JUDGMENT VACATED AND CASE REMANDED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Jimmy D. Johnson, appeals as of right from the sentence

he received in the Blount County Circuit Court for the offense of incest, a Class C

felony. The trial court sentenced the defendant as a Range I, standard offender to five

years, requiring him to serve one year in the county jail and four years in the

Community Corrections Sex Offenders’ Program. In this appeal, the defendant

contends that:

              (1) the trial court erred by using enhancement factors in T.C.A.
              § 40-35-114(1) and (4) to determine his sentence;

              (2) the trial court erred by refusing to permit the defendant to
              serve his entire sentence on probation or in the community
              corrections program; and

              (3) the trial court was without authority to split the defendant’s
              community corrections sentence with a term of confinement.

We disagree and conclude that the trial court has authority to impose a community

corrections sentence with a term of confinement. However, we vacate the judgment of

conviction and remand the case for further proceedings, because the defendant was

convicted of an offense with which he was not charged.



              The record reflects that the defendant was charged with rape of his

fourteen-year-old daughter. The record also reflects that the defendant entered a guilty

plea to incest, although a transcript of the guilty plea hearing is not part of the record on

appeal.



              As for the sentencing enhancement issues raised by the defendant, the

fact that the record on appeal does not include a transcript of the guilty plea hearing is

significant. Without a full record of the trial court events that are relevant to the

sentencing issues before us, we presume that the trial court is correct in its

determinations. See State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim. App. 1987).



                                              2
Moreover, without a full record, we are unable to undertake a full de novo review as

required under T.C.A. § 40-35-401(d). Thus, the defendant’s issues claiming errors in

use of enhancement factors and in rejection of full probation would avail him nothing in

a review on the merits.



              As for the defendant’s claim that the trial court was without authority to

split his sentence between confinement and a sentence under the Community

Corrections Act of 1985, it involves a question of law that is not dependent upon the full

record. The defendant relies upon State v. Michael Richmond, No. 02C01-9410-CR-

00217, Shelby County (Tenn. Crim. App. Sept. 13, 1995), in which this court stated that

when “a defendant is placed in community corrections, the defendant serves his entire

sentence in community corrections, but the court is able to alter or amend the length,

terms or conditions of the defendant’s sentence.” Slip op. at 4 (emphasis added). This

court noted that T.C.A. § 40-36-106(e)(1) provides that a trial court may sentence a

defendant eligible for a community corrections sentence to any appropriate community-

based alternative to incarceration in lieu of incarceration in a state penal institution,

local jail or workhouse. Id., slip op. at 3.



              In response, the state asserts that the trial court was not required to order

the defendant to serve his entire sentence in a community corrections program. It

contends that pursuant to T.C.A. § 40-36-106(e)(1) and (2), the trial court may place

conditions upon a community corrections sentence and that the year of confinement in

the county jail was such a condition.



              We believe that the sentence imposed by the trial court was legally

authorized. The Community Corrections Act of 1985 contemplates the use of shock

incarceration in conjunction with a community corrections sentence. Pursuant to T.C.A.

§ 40-36-106(e)(1), a trial court is authorized to sentence an eligible defendant to any



                                               3
appropriate community-based alternative to incarceration as provided by law, and

“under such additional terms and conditions as the court may prescribe, in lieu of

incarceration in a state penal institution or local jail or workhouse.” A “community-

based alternative to incarceration” is defined in T.C.A. § 40-36-102(5) as “services and

programs provided in local jurisdictions for eligible offenders in lieu of incarceration in

state penal institutions or local jails and workhouses” and those alternatives provided in

T.C.A. § 40-36-302.



              Pursuant to T.C.A. § 40-36-302(a), the community-based alternatives

include but are not limited to:

              (1) noncustodial community corrections options which involve
              close supervision but which do not involve housing of the
              offender in a jail, workhouse or community facility;

              (2) short-term community residential treatment options which
              involve close supervision in a residential setting;

              (3) enrolling community corrections participants in residential
              in-house drug and alcohol treatment for detoxification and
              counseling; and

              (4) individualized services which evaluate and treat the special
              needs of the population served under this chapter.

However, T.C.A. § 40-36-302(b) also provides that the above options may be used “in

conjunction with a period of shock incarceration, or in conjunction with a term of

probation and/or a term of split confinement or periodic confinement as provided in

chapter 35 of this title.” (Emphasis added).



              The term “shock incarceration” is not defined, but the separate references

to split confinement and periodic confinement as provided in the Sentencing Reform Act

of 1989 are telling. That is, the fact that shock incarceration is mentioned separately

from confinement options relative to probation shows that the legislature contemplated

the use of confinement with a community corrections sentence, alone. Thus, we agree




                                               4
with the state that a period of confinement may be used as a special condition of a

community corrections sentence in the appropriate case.



              As for how long a period of confinement is contemplated, we believe that

the legislature’s intent can be drawn from the split confinement law dealing with

probation. Under T.C.A. § 40-35-306, a period of confinement up to one year can be

imposed along with probation. The Sentencing Commission Comments refer to this

use of confinement coupled with probation as “shock probation.” Given, as well, that a

community corrections sentence is provided as a sentencing alternative in T.C.A. § 40-

35-104(c)(8), we see no reason why the legislature would consider the term of

confinement for “shock” value authorized under the Community Corrections Act to be

any different than that allowed for probation. Thus, in the appropriate case, a one-year

period of confinement could be imposed in conjunction with, as a condition of, a

community corrections sentence.



              However, the defendant’s judgment of conviction must be vacated and

this case remanded because he was convicted for an offense with which he was never

charged. The indictment returned by the grand jury charged the defendant with rape,

but he was convicted of incest. No amendment to the indictment exists in the record.

The record indicates that the trial court viewed incest as a lesser included offense of

rape. It is not, neither by law nor by the indictment allegations in this case. See State

v. Brittman, 639 S.W.2d 652, 654 (Tenn. 1982); State v. Trusty, 919 S.W.2d 305 (Tenn.

1996); Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).



              We note, as well, that an indictment is to be in writing. See T.C.A. § 40-

13-101(a). Because any amendment would be part of the indictment, it also must be in

writing. In this respect, a “lawful accusation is a prerequisite to jurisdiction.” Trusty, 919

S.W.2d at 309. In this case, the record on appeal does not contain a written



                                              5
amendment to the indictment or any mention of an amendment to the indictment. With

the record completely silent as to the defendant’s position on any amendment, we

cannot presume that an amendment occurred. Thus, the record reflects that the

defendant was convicted of an offense with which he has not been charged.



             In consideration of the foregoing, we vacate the judgment of conviction for

incest. The case is remanded for further proceedings consistent with this opinion.



                                               __________________________
                                               Joseph M. Tipton, Judge

CONCUR:



Gary R. Wade, Judge




William M. Barker, Judge




                                                                FILED
                                                                 October 16, 1997
             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                    Cecil Crowson, Jr.
                              AT KNOXVILLE          Appellate C ourt Clerk


                                           6
                               JANUARY 1997 SESSION

STATE OF TENNESSEE,                       )
                                                  )
              Appellee,                           )     No. 03C01-9602-CC-00062
                                                  )
                                                  )     Blount County
v.                                                )
                                                  )     Honorable D. Kelly Thomas,
Judge
                                                  )
JIMMY D. JOHNSON,                         )       (Sentencing)
                                                  )
              Appellant.                          )



                                CONCURRING OPINION

                     Article I, § 14 of the Tennessee Constitution provides that "no

person shall be put to answer any criminal charge but by presentment, indictment, or

impeachment." This right to a criminal accusation by a grand jury applies to all crimes

except those involving a fine of $50.00 or less. Capital News Co., Inc. v. Metro. Gov't of

Nashville, 562 S.W.2d 430 (Tenn. 1978). Also, it is well established that an indictment

charges not only the offense stated but all lesser and included offenses. Tenn. R.

Crim. P. 31(c); Strader v. State, 362 S.W.2d 224, 227 (Tenn. 1962); State v. Alcorn,

741 S.W.2d 135, 139 (Tenn. Crim. App. 1987).



                     In order to meet the requirements of law, an indictment must (1)

contain all of the elements of the offense; (2) sufficiently apprise the defendant of the

offense he is called upon to defend; (3) inform the trial judge of the offense to which he

must apply the judgment; and (4) permit the defendant, as a guard against double

jeopardy, to plead with accuracy a former acquittal or conviction, on prior jeopardy

principles, of the present offense. Frost v. State, 330 S.W.2d 303, 305 (Tenn. 1959);

Inman v. State, 259 S.W.2d 531 (Tenn. 1953).

                     Rule 7, Tenn. R. Crim. P., provides that an "indictment,

presentment or information may be amended in all cases with the consent of the

defendant...." There was no such amendment in this case. Instead, the defendant


                                              7
entered a guilty plea to incest, which is clearly not a lesser included offense of rape.

While the guilty plea might indicate that the defendant would have consented to the

amended indictment, the Constitution requires more than an implication. The original

indictment, as it now stands, would not be sufficient to bar future prosecution of this

defendant for the same offense. By remanding this case for remedial action, the courts

not only avoid a meritorious post-conviction challenge but also underscore the

importance of the constitutional provision.



                     For these reasons, I concur in the opinion.




__________________________________
                                                  Gary R. Wade, Judge




                                              8
