            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                            DECEMBER SESSION, 1996                FILED
                                                               November 13, 1997
STATE OF TENNESSEE,              )      C.C.A. NO. 02C01-9601-CR-00022
                                 )                              Cecil Crowson, Jr.
      Appellant,                 )                                 Appellate C ourt Clerk
                                 )
                                 )      SHELBY COUNTY
VS.                              )
                                 )      HON. JOHN P. COLTON, JR.
CLIFTON EPPS,                    )      JUDGE
                                 )
      Appellee.                  )      (Sentencing)




FOR THE APPELLANT:                      FOR THE APPELLEE:

CHARLES W. BURSON                       RANDALL W. PIERCE
Attorney General and Reporter           Wampler, Pierce & Siegel, P.C.
                                        294 Washington Avenue
ELLEN H. POLLACK                        Memphis, TN 38103
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

WILLIAM L. GIBBONS
District Attorney General

JAMES M. LAMMEY
Assistant District Attorney
201 Poplar Avenue, Third Floor
Memphis, TN 38103



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                                OPINION



         Appellant Clifton Epps was convicted upon his plea of guilty of the

offense of driving wh ile a habitu al moto r vehicle offe nder. See Tenn. Code

Ann. § 5 5-10-61 6. He rec eived a se ntence of one ye ar in the S helby C ounty

W orkho use, h owev er the A ppella nt was allowe d by the trial cou rt to serv e his

senten ce in a co mm unity corre ctions pro gram. See Tenn. Code Ann. § 40-36-

101, et seq. The State of Tennessee filed this appeal which challenges the

eligibility of App ellant for a co mm unity corre ctions pla ceme nt. 1

         After a thorough review of the record in this case we are of the opinion

that the decision of the trial court must be reversed and this case remanded

for reconsideration of Appellant’s eligibility for a community corrections

placem ent.

         Tenn essee Code Annota ted Sec tion 40-3 6-106 (1 995 Su pp.)

establishes the eligibility requirements for criminal defendants seeking a

placement in a community corrections program. Section 40-36-106(a)(6)

provides that offenders who “demonstrate a pattern of committing violent

offense s” are no t eligible for su ch a pro gram. T he reco rd in this cas e reflects

that Appellant has a record of convictions on four counts of assault. Thus, the

State argue s Appellant’s history o f assault offenses renders him ineligible for a

placement in a community corrections program, and that the trial court’s order

placing A ppellant in such a p rogram is erroneo us and should b e reverse d.



1
 Purs uan t to Te nne sse e Co de A nno tated Sec tion 4 0-35 -402 , the S tate o f Te nne sse e m ay app eal
certa in sen tenc ing de cisio ns. A lthou gh th e lang uag e of S ectio n 40- 35-4 02 do es no t spe cifica lly
mention the placement of a criminal defendant in a community corrections program as an
appea lable issue , this Cour t has held that the Sta te ma y pursue such a ppeals. State v. To m H ale,
No. 03C01-941 1-CR-00404 (Tenn. Crim. App . at Knoxville, August 14, 1995).

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Appe llant arg ues th at des pite his record of com mitting violent o ffense s he is

nevertheless eligible for community corrections under Tennessee Code

Annotated Section 40-36-106(c) which provides:

              Felony offenders not otherwise eligible under
              subsection (a), and who would be usually considered
              unfit for p robatio n due to histo ries of c hronic alcoh ol,
              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 c omm unity un der the provisio ns of th is
              chapter.

       We agree with Appellant that if he meets the criteria of subsection (c) he

would be elig ible for c omm unity co rrection s des pite his history o f assa ult

conviction s. Howe ver, the rec ord in this ca se is insuffic ient for this C ourt to

determine Appellant’s eligibility for community corrections under subsection

(c). In State v. Robert Boston, No. 03C01-9505-CR-00154 (Tenn. Crim. App.

at Knoxville, May 14, 1996), this Court specified that in placing an offender on

community corrections pursuant to subsection (c) the trial court must make the

following find ings of fac t:

              (1) the offender has a history of chronic alcohol or
              drug abuse, or mental health problems,

              (2) these factors were reasonably related to and
              contribute d to the offe nder’s crim inal cond uct,

              (3) the identifiable spec ial need (or nee ds) are
              treatable, and

              (4) the treatment of the special need could be served
              best in the community rather than in a correction
              institution.

Id. at 4. In the pre sent cas e the trial judg e in sente ncing A ppellant to

community corrections noted only that Appellant’s criminal record included a




                                           -3-
numbe r of public intoxication offense s. The findings of fact required by Boston

are not present in this record.

       Under the circumstances we are compelled to reverse the decision of

the trial c ourt an d rem and th is case for re-s enten cing in acco rdanc e with th is

opinion.


                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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