      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        JUNE 1997 SESSION         FILED
                                                    August 5, 1997

                               )                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,            )
                               ) C.C.A. No. 02C01-9607-CR-00228
      Appellee,                )
                               ) Shelby County
V.                             )
                               ) Honorable Arthur T. Bennett, Judge
JONATHAN ASKEW,                )
                               ) (Sentencing)
      Appellant.               )
                               )




FOR THE APPELLANT:                FOR THE APPELLEE:

Gerald Green                      Charles W. Burson
Attorney at Law                   Attorney General & Reporter
301 Washington, Suite 302
Memphis, TN 38103                 Deborah A. Tullis
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  William L. Gibbons
                                  District Attorney General

                                  Perry Hayes
                                  Assistant District Attorney General
                                  Criminal Justice Complex
                                  201 Poplar, Suite 301
                                  Memphis, TN 38103




OPINION FILED: ___________________


REVERSED AND REMANDED

PAUL G. SUMMERS,
Judge
                                   OPINION



       As part of a negotiated plea agreement, the appellant, Jonathan Askew,

pled guilty to driving while under the influence and to driving while his license was

revoked, canceled, or suspended. This was the appellant’s second conviction for

driving while under the influence, which is a violation of Tenn. Code Ann. § 55-10-

401 (1993). Although the trial court found the appellant eligible for the work

release program, it denied his application to the program because his employer,

the State of Tennessee, refused to send his paycheck directly to the Shelby

County Correctional Center Work Release Program. We respectfully reverse the

judgment of the trial court and remand for reconsideration of the application.



       The appellant argues that Tenn. Code Ann. § 41-2-128(c)(1)(C) (Supp.

1994) requires only that “[t]he defendant agree[] to defray, to the best of the

defendant’s ability, the cost of incarceration and treatment,” not that the

appellant’s payroll check be sent directly to the work release office. He, therefore,

contends that the employer agreement required for the work release program is

more stringent than the statute itself. He further argues that Tenn. Code Ann. §

41-2-129 (Supp. 1994) provides that even the warden can deposit a defendant’s

funds or a defendant can turn his or her wages over to the warden once they are

received.



       The state agrees with the appellant in this case. The state maintains that

the trial court may order the appellant to pay a certain amount to defray the cost of

his incarceration, but that the trial court may not deny his application for the work

release program “solely because his employer refuses to mail his paycheck to that

office.”




                                          -2-
        The appellant’s second offense for driving under the influence occurred

on August 19, 1994. Although not noted in either brief, our Supreme Court on

June 20, 1994 declared the entire work release statute of Tenn. Code Ann.

§ 41-2-128(c) unconstitutional in State v. Tester, 879 S.W.2d 823 (Tenn. 1994).

Therefore, at the time the appellant committed the offense, this statute had been

rendered unconstitutional because it violated equal protection of the laws

guaranteed by the Fourteenth Amendment to the United States Constitution and

guaranteed by Article I, Section 8 and Article XI, Section 8 of the Tennessee

Constitution. Under the 1994 version of Tenn. Code Ann. § 41-2-128(c),

subsection (9) allowed only three Tennessee counties to grant work release to

persons convicted of a second violation of driving under the influence: Shelby,

Davidson, and Moore. 1



        In 1995, the legislature amended Tenn. Code Ann. § 41-2-128(c) to

remove subsection (9); and the amended statute became effective on May 9,

1995. The amended statute contained the same language in subsection

(c)(1)(C) as the unconstitutional statute. The appellant in this case, who was

sentenced in Shelby County, negotiated a plea agreement on September 11,

1995; and the trial court approved that agreement on October 13, 1995.

Therefore, Tenn. Code Ann. § 41-2-128(c) was applicable to the appellant when

it was unconstitutional because he was convicted in Shelby County, which was

one of the three counties in which the statute applied; and the amended statute

was applicable to the appellant as well.




        1
         The original version of this statute contained a population requirement which made work
release mandatory in some counties and discretionary in others:

        [C]ounties having a population of 600,000 or more according to the 1960 Federal
        Census or any subsequent Federal Census shall permit certain prisoners to leave
        the workhouse during reasonable and necessary hours for occupational, scholastic
        or medical purposes as provided in this Act. All other counties of this state are
        authorized to permit certain prisoners to leave the workhouse during reasonable and
        necessary hours for occupational, scholastic or medical purposes as provided in this
        Act.

1967 Tenn. Pub. Acts 259.

                                                -3-
       Consequently, we conclude that the trial court erred in denying the

appellant’s application to the work release program because his employer

refused to send his paycheck directly to the Shelby County Correctional Center

Work Release Program. Therefore, we respectfully reverse the judgment of the

trial court. Consistent with this opinion, the trial court will conduct a hearing to

reconsider the appellant’s work release application.




                                                ______________________________
                                                PAUL G. SUMMERS, Judge


CONCUR:


______________________________
DAVID H. WELLES, Judge



______________________________
JOE G. RILEY, Judge




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