        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                       NOVEMB ER SESSION, 1998          April 8, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9802-CC-00064
                            )
      Appe llant,           )
                            )
                            )    WILLIAMSON COUNTY
VS.                         )
                            )    HON . DON ALD P . HARR IS
ANDRE L. HENDERSON,         )    JUDGE
                            )
      Appellee.             )    (Dire ct Ap pea l - Agg ravat ed R obb ery)




FOR THE APPELLANT:               FOR THE APPELLEE:

LARRY D. DROLSUM                 JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
407 C. Main Street
P. O. Box 68                     DARYL J. BRAND
Franklin, TN 37065-0068          Senior Counsel

                                 KIM R. HELPER
                                 Legal Assistant
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 JOE D. BAUGH, JR.
                                 District Attorney General

                                 DEREK SMITH
                                 Assistant District Attorney
                                 P. O. Box 937
                                 Franklin, TN 37065-0937



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                    OPINION


       On November 24, 199 7, Appe llee And re L. Hen derson pled guilty to one

count of aggravated robbery. Following a two-day sentencing hearing on January

9 and 20, 1998, the trial court se ntenced A ppellee as a R ange I stand ard

offender to eight years in the Community Corrections Program. On January 22,

1998, the State filed a motion to reconsider sentence. After a hearing, the trial

court denied the motion. The State challenges the denial of its motion, raising

the following issue: whe ther a defendant who is convicted of aggravated robbery

can be sentenced to a term in the Com munity Corrections P rogram. After a

review of th e record , we revers e the judg ment o f the trial court.



                                       FACTS




       On June 11, 1997, Appellee entered the Hampton In n and Suites in

Franklin, Tennessee, wearing a stocking over his head and c once aling o ne of h is

arms with a towel and th e other arm with a sock. Appellee then grabbed one of

the employee s by the arm and pulled her over by the cash register.            The

employee then opened the cash register because she believed that Appellee had

a gun and would shoot her.         After the employee opened the cash register,

Appellant took money from the drawer and fled the sc ene in a v ehicle. Appellee

was ap prehen ded sh ortly therea fter.




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                                     ANALY SIS




      The State co ntends that the trial co urt erred when it sentenced Appellee

to Com munity C orrection s. Specifically, the State contends that Appellee was

statuto rily ineligible to participate in the Co mm unity Cor rections P rogram . We

agree.



      Eligibility for the Com munity Corrections Program is governed by section

40-36-1 06 whic h states, in relevant p art:

      (a) An offender who meets all of the following minimum criteria shall be
      considered eligible for punishment in the community under the provisions
      of this chapter:
                    ....
             (2) Persons who are convicted of property-related, or
             drug/alcohol-related felony offenses or other felony offenses not
             involving crimes against the person as provid ed in title 39, chapter
             13, parts 1-5;
             (3) Persons who are convicted of nonviolent felony offenses;

Tenn. Code Ann. § 40-36-106(a) (Supp. 1998). There is no question that

because Appellee pled guilty to the violent felony offense o f aggravated ro bbery

under Tennessee Code Anno tated s ection 39-13 -402, A ppelle e is not eligible for

the Com munity Co rrections Progra m unde r 40-36-106 (a).



      Howeve r, an offender who does not meet the minimum criteria under

40-36-106(a) may still be eligible for Comm unity Corrections u nder 40-36 -106(c),

which states:

      (c) Felony offende rs not oth erwise eligible under subsection (a), and who
      would be us ually co nside red un fit for proba tion du e to his tories o f chron ic
      alcoh ol, drug abuse, or mental health problems, but whose special needs
      are treatable and could be served best in the co mm unity ra ther tha n in a
      correctional institution, may be considered eligible for punishment in the
      comm unity under the p rovisions of this chap ter.


                                          -3-
Tenn. Code Ann. § 40-36-106(c) (Supp. 1998 ). This Cour t has p reviou sly stated

that in order to be eligible for the Community Corrections Program under 40-36-

106(c), a defendant must first b e statutorily e ligible for prob ation.                             State v.

Grigsby, 957 S.W .2d 541 , 546 (T enn. C rim. App . 1997); State v. Boston, 938

S.W.2d 435, 43 8 (Ten n. Crim. A pp. 199 6); State v. Staten, 787 S.W.2d 934, 936

(Tenn. Crim. App . 1989). 1 Tenn essee Code Annota ted section 40-35-303(a)

expre ssly states that “a defendant shall not be eligible for probation under the

provisions of this cha pter if the de fendan t is convicted of a violation of . . . § 39-

13-402 . . . .” Tenn. Code Ann. § 40-35-303(a) (1997). Thus, there is no

question that Appellee was not elig ible for the Community Corrections Program

under 40-3 6-106(c). 2



         In short, Appellee w as clearly ineligible for the Co mmu nity Corrections

Program under b oth 40-36-106(a) and (c). Accordingly, we reverse the judgment

of the trial court and we reman d this cas e for furthe r procee dings co nsistent w ith

this opinion.



                                             ____________________________________
                                             JERRY L. SMITH, JUDGE




         1
         The ration ale fo r this c onc lusion is tha t the “w aiver of fitn ess for pr oba tion [c onta ined in
40-36-106(c)] is meaningless, unless the normal statutory criteria for probation apply to subsection (c)
participants.” Staten, 787 S.W.2d at 936.

          2
            Although Appellee concedes that he is not eligible for the Community Corrections Program under
exis ting s tatuto ry and cas e law , App ellee c laim s tha t exc luding him from the p rogr am violate s his
constitutional right to due process and contravenes the intent the legislature had when it enacted the
Com mu nity Co rrec tions Act. H owe ver, A ppe llee ha s faile d to c ite to th e rec ord o r to an y auth ority in
support of this conclusory allegation, and we are unpersuaded that either the federal or state constitutions
prohibit the legislature from setting the eligibility standards for the community corrections program in the
manner now provided.

                                                      -4-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOHN H. PEAY, JUDGE




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