         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 3, 2004

                   STATE OF TENNESSEE v. CHRIS E. HIXSON

                  Direct Appeal from the Circuit Court for Dickson County
                  Nos. CR3993, CR5044, CR5844      Robert E. Burch, Judge



                      No. M2002-03141-CCA-R3-CD - Filed April 7, 2004


The Defendant, Chris E. Hixson, pled guilty to two counts of theft and three counts of sale of
cocaine, all Class C felonies. He was sentenced to two concurrent four-year terms for the theft
offenses, and to three concurrent four-year terms for the cocaine offenses, these latter terms to be
served consecutively to the terms for the theft offenses, for an effective sentence of eight years. All
of these sentences were ordered to be served on community corrections. The Defendant was
subsequently convicted of aggravated burglary and sentenced to serve three years on community
corrections, consecutive to the sentences imposed for the theft offenses. The effective sentence of
eight years was thus unchanged. Subsequent to the burglary conviction, the Defendant violated the
terms of his release and was ordered to serve two years day-for-day in confinement, after which he
was to be released back into community corrections. It is from this order that the Defendant now
appeals, arguing that the two years of continuous confinement constitutes an illegal sentence. The
State concedes that the sentence is illegal. We agree. The trial court’s judgment is reversed and this
matter is remanded to the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                        Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Merrilyn Feirman, Nashville, Tennessee and Chris L. Young, Ashland City, Tennessee, for the
appellant, Chris E. Hixson.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Dan Alsobrooks, District Attorney General; and Suzanne Lockert, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                             OPINION

         The record in this matter establishes that the Defendant has violated the terms of his
community corrections sentence numerous times. At the most recent violation hearing, which
resulted in the order at issue in this appeal, the Defendant’s probation officer testified that “[the
Defendant] has already had several violations. He has not reported well. He has failed several drug
tests. He is not a good candidate for Community Corrections.” At the conclusion of the hearing, the
trial judge stated,

                If I violate [the Defendant] and send him on to prison, they’ll parole him out
       in thirty percent and basically won’t have [a] very high level of supervision after that.
       I’m just not going to do that. I’m going to require him to serve two years in the
       county jail, day for day. After those two years, day for day, he will be placed out on
       Community Corrections level one supervision. If he violates again, I’ll put him in
       for two more.

An order was subsequently filed, providing that the Defendant was “ordered to serve 2 years day for
day then placed back out on level one community corrections.” The Defendant contends, and the
State concedes, that this order constitutes an illegal sentence.

         This case is almost identical to the case of State v. Tim Mattingly, No. M2002-02765-CCA-
R3-CD, 2003 WL 22038777 (Tenn. Crim. App., Nashville, Sept. 2, 2003). In that case, the same
trial judge found the defendant to be in violation of his community corrections sentence, and as
“punishment” for the violation, ordered the defendant to serve three years in confinement, day-for-
day, after which he was to be placed back on community corrections. In reviewing this sentence, this
Court stated,

               When a defendant violates the terms of a community corrections sentence, the
       trial court may either revoke the community corrections sentence and resentence the
       defendant, see Tenn. Code Ann. § 40-36-106(e)(4), or it need not revoke and may
       allow the defendant to continue to serve the community corrections sentence. If the
       trial court revokes the community corrections sentence, it “may resentence the
       defendant to any appropriate sentencing alternative, including incarceration, for any
       period of time up to the maximum sentence provided for the offense committed, less
       any time actually served [on community corrections.]” Id. If community corrections
       is revoked, the trial court must conduct a new sentencing hearing in accordance with
       the Criminal Sentencing Reform Act and may even impose a greater sentence than
       the original sentence.

               If the trial court opts to allow a defendant to continue serving the community
       corrections sentence despite a violation, it may impose, as a condition, additional
       requirements including a period of incarceration. This is authorized because the trial
       court “retain[s] the authority to alter or amend at any time the length, terms or


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       conditions” of the community corrections sentence. Tenn. Code Ann. § 40-36-
       106(e)(2). However, in the event the trial court imposes incarceration as a condition,
       the period of confinement may not exceed one year.

Mattingly, 2003 WL 22038777, at *2 (citations omitted); see Tenn. Code Ann. § 40-35-306(a).
Where a period of confinement is imposed, an order of day-for-day service is impermissible because
a trial court cannot deny a defendant the statutory right to earn good conduct credits or authorized
work credits where the defendant receives a sentence of split confinement and becomes a county jail
inmate. See State v. Jeannie Hudson, No. E2001-00377-CCA-R3-CD, 2002 WL 264625, at **4-5
(Tenn. Crim. App., Knoxville, Feb. 19, 2002). In the Mattingly case, this Court found the sentence
to be illegal and void, reversing the trial court’s judgment and remanding the matter for further
proceedings. See Mattingly, 2003 WL 22038777, at *3.

         In fairness to the trial court, the Mattingly decision had not been filed as of the time of the
instant hearing and subsequent order. Nevertheless, the same result obtains and we must find the
trial court’s order that the Defendant serve two years day-for-day in confinement to be an illegal and
void sentence.

       Accordingly, we must reverse the trial court’s judgment and remand this matter for further
proceedings consistent with this opinion.




                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




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