             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                       DECEMBER 1996 SESSION
                                                    FILED
                                                       July 24, 1997

                                                    Cecil Crowson, Jr.
STATE OF TENNESSEE,     )                           Appellate C ourt Clerk
                        )
         Appellee,      )       No. 02C01-9608-CC-00290
                        )
                        )        Tipton County
v.                      )
                        )        Hon. Joseph H. Walker, Judge
                        )
RONALD WAYNE STRICKLAND,)        (Aggravated Sexual Battery)
                        )
         Appellant.     )


For the Appellant:              For the Appellee:

Frank Deslauriers               Charles W. Burson
P.O. Box 1156                   Attorney General of Tennessee
Covington, TN 38019                    and
                                Deborah A. Tullis
                                Assistant Attorney General of Tennessee
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493

                                Elizabeth T. Rice
                                District Attorney General
                                        and
                                Walt Freeland
                                Assistant District Attorney General
                                302 Market Street
                                Somerville, TN 38068




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                             OPINION


                The defendant, Ronald Wayne Strickland, was convicted of aggravated

sexual battery, a Class B felony, pursuant to a guilty plea in the Tipton County Circuit

Court. He was sentenced as a Range I, standard offender, to eight years in the

Department of Correction. In this appeal as of right, he contends that the trial court

erred when it concluded that he was not eligible to be sentenced under the Community

Corrections Act. We affirm the judgment of the trial court.



                The defendant contends that he is eligible for a community corrections

sentence under the special needs provision of the Community Corrections Act of 1985,

T.C.A. § 40-36-106(c). 1 That section states:

                Felony offenders not otherwise eligible under subsection (a),
                and who would be usually considered unfit for probation due
                to histories of chronic alcohol, drug abuse, or mental health
                problems, but whose special needs are treatable and could be
                served best in the community rather than in a correctional
                institution may be considered eligible for punishment in the
                community under the provisions of this chapter.

T.C.A. § 40-36-106(c). The defendant acknowledges that this court has interpreted the

phrase “who would be usually considered unfit for probation” to mean that a defendant

must be otherwise eligible for probation to qualify to receive a sentence under this

provision. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989). However, he

argues that the 1993 amendments to T.C.A. § 40-35-303(a) and T.C.A. § 40-36-

106(e)(3) change the law in a way that a defendant with special needs is now eligible

for a community corrections sentence even if he is initially ineligible for probation.



                Under T.C.A. § 40-35-303(a), a defendant is eligible for probation if his

sentence is eight years or less and he is not convicted of aggravated sexual battery or

one of the other enumerated offenses. In 1993, the legislature added a sentence to the


                1
                  Having been convicted of aggravated sexual battery, a crime against a person, the
defend ant does not otherw ise qu alify for a com m unity corrections s ente nce . See T.C.A. § 40-36-
106(a)(2).

                                                     2
statute which states, “A defendant shall also be eligible for probation pursuant to § 40-

36-106(e)(3).” In relevant part, T.C.A. § 40-36-106(e)(3) grants the trial court the

authority to place an offender that it terminates from a community corrections program

on probation. “This authority of the court extends to offenders not originally eligible for

probation after service of at least one (1) year.” T.C.A. § 40-36-106(e)(3). The

defendant argues that under these provisions, a community corrections sentence must

be available to a defendant who is initially ineligible for probation.



              Although we agree with the defendant that some offenders who are

initially ineligible for probation are eligible for a community corrections sentence, see

T.C.A. § 40-36-106(a), we do not believe that the 1993 amendments to T.C.A. § 40-36-

106(3) and T.C.A. § 40-35-303(a) were intended to alter the requirements a defendant

must meet to fit within the special needs provision. To qualify to be sentenced pursuant

to T.C.A. § 40-36-106(c), a defendant must be eligible for probation. Staten, 787

S.W.2d at 936. The amendments do not address qualifying under this subsection.

Thus, having been convicted of an offense for which probation is statutorily prohibited,

the defendant does not meet this requirement. See T.C.A. § 40-35-303(a).



              In addition to his statutory argument, the defendant relies on State v.

Robert Bryant Rhodes, No 03C01-9405-CR-00174, Blount County, slip op. at 7 (Tenn.

Crim. App. July 20, 1995), to support his contention that he is eligible for a community

corrections sentence. Rhodes, convicted of rape, was not eligible for probation

because he received a sentence greater than eight years. See T.C.A. § 40-36-

106(e)(3). This court concluded that he was ineligible for a community corrections

sentence for the sexual offense under T.C.A. § 40-36-106(a)(2), but also added,

“absent a showing that he has special needs that can best be treated in the

community.” It concluded, though, that such needs were not proven.




                                              3
              Although Rhodes indicates that a defendant who is ineligible for probation

because of the length of his sentence may be eligible to be sentenced under the special

needs provision of the Community Corrections Act, the defendant does not fit within this

category. Unlike Rhodes, the defendant in this case was convicted of an offense for

which probation is statutorily prohibited. See T.C.A. § 40-35-303(a). In any event, the

language from Rhodes upon which the defendant relies has not been followed by this

court. Other opinions have failed to recognize any distinction between ineligibility for

probation due to the crime committed and ineligibility because of the length of the

sentence imposed. See State v. Lanny Crowe, No. 01-C-01-9503-CC-00064, Wayne

County, slip op. at 2 (Tenn. Crim. App. July 6, 1995); State v. Scotty G. Kilgore, 03C01-

9408-CR-00278, Washington County, slip op. at 2-3 (Tenn. Crim. App. June 13, 1995);

State v. Robert Roy Atnip, 01C01-9002-CC-00035, Dekalb County, slip op. at 5 (Tenn.

Crim. App. June 20, 1990), app. denied (Tenn. Sept. 24, 1990); see also State v.

Boston, 938 S.W.2d 435, 438 n.4 (Tenn. Crim. App. 1996); State v. Haynes, No.

01C01-9512-CC-00412, Giles County, slip op. at 5 n.3 (Tenn. Crim. App. Sept. 13,

1996); State v. Robert Wilson, Alias Tiny, No. 03C01-9209-CR-00305, Blount County,

slip op. at 11-12 (Tenn. Crim. App. Mar. 22, 1993).



              To qualify for a community corrections sentence under T.C.A. § 40-36-

106(c), a defendant must be eligible for probation. Staten, 787 S.W.2d at 936.

Because the defendant does not meet this requirement, see T.C.A. § 40-35-303(a), the

trial court properly concluded that he is not eligible to receive a community corrections

sentence under the special needs provision.




                                             4
             Accordingly, the judgment of the trial court is affirmed.




                                                       Joseph M. Tipton, Judge



CONCUR:




Joe B. Jones, Presiding Judge




Jerry L. Smith, Judge




                                            5
