          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997             FILED
                                                           August 15, 1997

                                                     Cecil W. Crowson
STATE OF TENNESSEE,               )
                                                   Appellate Court Clerk
                                  )   No. 01C01-9603-CR-00101
      Appellant                   )
                                  )   DAVIDSON COUNTY
vs.                               )
                                  )   Hon. THOMAS H. SHRIVER, Judge
ANAND FRANKLIN,                   )
                                  )   (Aggravated Sexual Battery)
                                  )
      Appellee                    )   STATE APPEAL



For the Appellee:                     For the Appellant:

TERRY J. CANADY                       CHARLES W. BURSON
211 Printer's Alley Bldg, Suite 400   Attorney General and Reporter
Nashville, TN 37201
                                      KATHY MORANTE
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493


                                      VICTOR S. (TORRY) JOHNSON III
                                      District Attorney General

                                      BILL REED
                                      Asst. District Attorney General
                                      Washington Square Building
                                      222 2nd Avenue, N
                                      Nashville, TN 37201




OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                               OPINION



         The State of Tennessee appeals the sentencing decision of the Davidson

County Criminal Court permitting the defendant, Anand Franklin, to serve his

sentence in the local community corrections program. On appeal, the State

challenges the eligibility of the defendant for sentencing under the Community

Corrections Act.1



         After review, we reverse the judgment of the trial court and remand.



         The defendant, a resident of India, was initially charged with three counts

of aggravated rape and one count of aggravated sexual battery upon minor

children. At a jury trial, the defendant was found guilty of aggravated sexual

battery. The proof at the sentencing hearing established that the defendant was

granted entry into the United States for a ninety day period to attend a “seminar.”

The record suggests that this was in connection with his work as a missionary for

the Seventh Day Adventist Church. On the date the offense was committed, the

ninety day period had expired, thus, the defendant was in this country illegally.

At the sentencing hearing, the defendant requested that he be permitted to

return to India. The trial court was also informed that the victim’s mother did not

oppose the defendant’s return to his native country. The State opposed any

form of release, arguing instead that the defendant’s place of confinement

should be the Department of Correction. At the conclusion of the sentencing

hearing, the trial court imposed an eight year sentence upon the defendant with

placement in the local community corrections program. The order further

provided for the defendant’s release from jail on March 15, and, as “a condition

of the Community Corrections, that he go to India on March 19th.” It is from this


         1
         As a subissue, the Sta te c ontes ts th e trial court’s autho rity to im pose banishm ent to In dia
as a form of pu nishm ent. In view of our holding that the de fendan t is ineligible fo r com m unity
corrections sentencing, we find it unnecessary to reach this question.

                                                     2
Order that the State now appeals.



       Eligibility for sentencing under the Tennessee Community Corrections Act

of 1985 is governed by Tenn. Code Ann. § 40-36-106(a) and (c) (1990). In this

case, the defendant was convicted of aggravated sexual battery, which is a

felony offense “involving [a] crime[ ] against the person as provided in Title 39,

. . . Chapter 13, parts 1-5; thus, he is ineligible for community corrections

sentencing under subsection (a). Tenn. Code Ann. § 40-36-106(a)(2). In order

to be eligible for community corrections sentencing under subsection (c), the

offender must be statutorily eligible for probation. State v. Staten, 787 S.W.2d

934, 936 (Tenn. Crim. App. 1989); State v. Crowe, No. 01C01-9503-CC-0064

(Tenn. Crim. App. at Nashville, 1995); State v. Blackburn, No. 02C01-9111-CC-

00253 (Tenn. Crim. App. at Jackson, 1993); State v. Wilson, No. 03C01-9209-

CR-00305, (Tenn. Crim. App. at Knoxville, 1993).



       Tenn. Code Ann. § 40-35-303(a) provides that “[a] defendant shall be

eligible for probation . . . if the sentence actually imposed upon such defendant

is eight (8) years or less; provided, that a defendant shall not be eligible for

probation under the provisions of this chapter if he is convicted of a violation of . .

. § 39-13-504.”



Because the defendant was convicted of Tenn. Code Ann. § 39-13-504,

aggravated sexual battery, he is statutorily ineligible for community corrections

sentencing under subsection (c). Accordingly, the defendant’s sentence to

community corrections is an illegal sentence and must be vacated.



       This matter is remanded to the trial court with instructions that the

defendant, Anand Franklin, be ordered to serve his sentence of eight years as a

Range one offender with the Tennessee Department of Correction.


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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




______________________________________
PAUL G. SUMMERS, Judge



______________________________________
JERRY L. SMITH, Judge




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