         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 13, 2000

                  STATE OF TENNESSEE v. MICHAEL COLVIN

               Appeal as of Right from the Criminal Court for Johnson County
                              No. 2471    Lynn Brown, Judge



                                   No. E2000-00701-CCA-R3-CD
                                          April 30, 2001


DAVID G. HAYES, J., dissenting.




        I am unable to join with my colleagues in holding that a trial judge may not modify a
misdemeanant’s “program eligibility” percentage following revocation of the misdemeanant’s
suspended sentence. Our sentencing laws provide that “in imposing a misdemeanor sentence, the
court shall fix a specific number of months, days or hours and the defendant shall be responsible for
the entire sentence . . .,” subject to various authorized sentencing credits. Tenn. Code Ann. § 40-35-
302(b). The program eligibility percentage, as provided by subsection 302(d), has no bearing upon
the misdemeanant’s length of sentence or when the sentence expires; rather, as noted above, every
non-suspended misdemeanor sentence is served at one hundred percent. Moreover, as observed by
the majority, program eligibility percentage is distinguished from probation, which is authorized in
subsection 302(e). Program eligibility, which is viewed under our sentencing law as a rehabilitative
measure, relates only to placement in “rehabilitative programs” for service of the sentence as
imposed. The fixing of a percentage for program eligibility, as with probation, must be determined
at sentencing. Tenn. Code Ann. § 40-35-302(d).

        The majority reasons that because our law requires reinstatement of the original judgment
following revocation, the Appellant’s original program eligibility of thirty percent must also be
reinstated. I respectfully disagree. Again, program eligibility is unrelated to the sentence length,
being expressly enacted as a rehabilitative measure, similar in purpose to probation. By analogy,
the probationer whose suspended sentence is revoked is not entitled to reinstatement of the original
judgment, i.e., probation. Similarly, a defendant serving a felony sentence of two years or less
whose sentence is revoked is not eligible for release after reaching his original release eligibility date
but, rather, must serve the entire sentence originally imposed. Tenn. Code Ann. § 40-35-501(a)(7).
In sum, I find no provision in our sentencing law which requires that the trial court afford to a
defendant, whose sentence is revoked, the same sentencing considerations as originally received.
         The Appellant in this case appears to have violated virtually every imposed condition of
probation. If the trial court at sentencing had expressed no eligibility percentage then, under the
majority’s holding, the Appellant would be immediately eligible for all available rehabilitative
programs in the Johnson County Jail. I do not believe that it was the intent of our legislature in
enacting Tenn. Code Ann. § 40-35-302(d) to provide rehabilitative program credits to probation
violators who do not wish to be rehabilitated. The decision as to what percentage of a sentence must
be served prior to being eligible for rehabilitative programs following a probation revocation should
be left to the discretion of the trial court under the facts of the case.

       For the reasons, I would affirm the judgment of the trial court.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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