        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                        JANUARY SESSION, 1999        February 25, 1999

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9802-CC-00072
                            )
      Appellee,             )
                            )
                            )    FRANKLIN COUNTY
VS.                         )
                            )    HON . THOM AS W. G RAHAM
JOHN W. HILL,               )    JUDGE
                            )
      Appe llant.           )    (Direct Appeal - Violation of Habitual
                            )    Traffic Offender Law)




FOR THE APPELLANT:               FOR THE APPELLEE:

FRANCIS W. PRYOR                 JOHN KNOX WALKUP
Assistant Public Defender        Attorney General and Reporter
12th Judicial District
200 Betsy P ack Drive            CLINTON J. MORGAN
Jasper, TN 37347                 Coun sel for the S tate
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 J. MICHAEL TAYLOR
                                 District Attorney General

                                 STEVEN BLOUNT
                                 Assistant District Attorney
                                 1002 We st Main
                                 Decherd, TN 37324



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                      OPINION

       On June 26, 1997, Appellant John W. Hill pleaded guilty to operating a

vehicle in violation of the habitual traffic offender law, a Class E felony. On

August 22, 199 7, the trial cou rt impos ed a two year sen tence, w ith one ye ar to

be served “day by day” in the Franklin County Jail and one year to be se rved in

the Community Corrections Program.1 Appellant challenges his sentence, raising

the following issue:         whether a trial court can impose a longer period of

confinement by use of a split sentence under Tennessee Code Annotated section

40-35-306(a) than is allowed under Tennessee Code Annotated section 40-35-

501(a)(3). After a review of the record, we reverse and remand this case for re-

sentencing

                                             FACTS




       On May 18, 1996, Officer Charles Keller of the Decherd, Tennessee Police

Department stopped Appellant for driving twenty-three miles per h our in a fifty-

five mile p er hou r zone . Appe llant wa s una ble to p rovide the officer with a

driver’s license because his license was suspended after he was declared to be

a habitual traffic offender on July 27, 1995.




       1
         On December 18, 1997, the trial court modified the sentence and ordered Appellant to serve 150
days in the county jail, with the remaining period of confinement to be served if his appeal was
unsuc cessf ul.

                                                -2-
                                                ANALY SIS




         Appellant contends that the trial court erred when it sentenced him to one

year of confinement followed by one year in the Community Corrections Program

because the general rule under Tennessee law is that a felon who receives a

sentence of two years or less must be released from confinement on his or her

release eligibility date.2 We agree.



         In imposing a period of confinement in the coun ty jail followed by one year

in the Community Corrections Program, the trial court apparently relied on

Tennessee Code An notated section 40-33-306(a), which states:

         A defendant receiving probation may be required to serve a portion of the
         sentence in continuous confinement for up to one (1) year in the lo cal jail
         or workhouse, with probation for a period of time up to and including the
         statutory maximum time for the class of the conviction offense.

Tenn. C ode Ann . § 40-35-306 (a) (1997). 3



         Appellant argues that in his case, impos ition of a sentence of one year of

confinement followed by one year in the Com mun ity Corre ctions Prog ram is

inconsistent with Tennessee Code Annotated section 40-35-501(a)(3), which

states:

         Notwithstanding any other pro vision of law , inmates with felony sentences
         of two (2) years or less shall have the remainder of their original sentence
         suspended upon reaching their release eligibility date.


         2
        The State take s no p ositio n on t he m erits o f App ellant ’s arg um ent. In stea d, the State me rely
argues that this issue has been waived for reasons that we find unpersuasive.

         3
        Tenn essee Code Annota ted sec tion 40-36 -106(f) p oints out tha t this statute is a pplicable to
community corrections:
       Nothing herein shall prevent a court from permitting an eligible defendant to participate in a
       com mun ity-based a lternative to inc arcera tion as a c ondition of probation in conjun ction with . . .
       split confinement . . . as provided by chapter 35 of this title.
Tenn. Code A nn. § 40-35-106(f) (Supp. 1998).

                                                       -3-
Tenn. Code Ann. § 4 0-35-50 1(a)(3) (S upp. 19 98).                            For R ange I s tandard

offenders, the release eligibility date occurs after service of thirty percent of the

actual sentence imposed, less any sentencing credits earned and retained.

Tenn. C ode Ann . § 40-35-501 (c) (Supp. 199 8).



         In order to re solve this iss ue, section 40-35-30 6(a) must be read “in pari

materia” with section 40-35 -501( a)(3) in order to g ive effect to leg islative intent.

See Owen s v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (“Statutes ‘in pari

materia’—those relating to the same subject or having a com mon pu rpose— are

to be con strued to gether.”). It is clear that in enacting section 40-35-501 (a)(3),

the legislature intended for a felon who received a sentence of two years or less

to be released from confinement on his or her release eligibility date, regardless

of whether the sentence combined confinement with any other form of

punish ment. 4 Allowing a cou rt to circu mven t a defe ndan t’s release e ligibility date

by imposing a longer period of confinement under section 40 -35-3 06(a) would

comp letely evisce rate the legislative intent behind the enactment of section 40-

35-501(a)(3 ). When the two statutes are read together, it is evident that section

40-35-306(a) allows a cou rt to imp ose a period of up to one ye ar in the loc al jail

as part of a sentence involving split confinement, but only if the period of

confinement would be completed on or be fore the d efenda nt’s releas e eligibility

date under section 40-35-501.




        4
           This intention is consistent with the legislature’s recognition that, because prison resources are
limited, the mos t serious f elony offen ders sh ould rece ive priority in sente nces inv olving incar ceration. See
Tenn. Code Ann. § 40-35-102(5)–(6) (1997). Tennessee Code Annotated Section 40-35-501(a)(6)(A)
provides a mechanism for authorities to keep a prisoner sentenced to two years or less incarcerated
beyond his release eligibility date if the prisoner poses disciplinary problems while in the jail or
pen itentia ry.

                                                      -4-
      Because Appella nt was se ntence d as a R ange I sta ndard o ffender, his

release eligibility date would occur after serving thirty percent of his sentence,

less any applicable sentencing credits. Thus, had Appellant simply received a

sentence of two years of confinement, his rele ase eligibility date would h ave

occurred after service of 219 days of his sentence, less any applicable

sentencing credits. Therefore, we hold that the trial cou rt erred when it attempted

to circumvent se ction 40-35-50 1(a)(3) by sentencing Appellant to one year of

confinement followed by one year in the Community Corrections Program.



      According ly, we reverse the sentence in this case and remand for re-

sentencing in accordance with this opinion.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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