               IN THE COURT OF APPEALS OF TENNESSEE

                               FILED
                              October 21, 1999

                             Cecil Crowson, Jr.
                            Appellate Court Clerk


                               AT KNOXVILLE




IN THE MATTER OF:                )   C/A NO. 03A01-9908-CR-00272
                                 )
MATTHEW LANCE POWELL,            )
A Minor Child Under the Age      )
of 18.                           )
                                 )   APPEAL AS OF RIGHT FROM THE
                                 )   KNOX COUNTY CRIMINAL COURT
                                 )
                                 )
                                 )
                                 )   HONORABLE RICHARD E.
BAUMGARTNER,
                                 ) JUDGE



For Appellant                        For Appellee
  Matthew Lance Powell                 State of Tennessee

MARK E. STEPHENS                     PAUL G. SUMMERS
District Public Defender                  Attorney General and
Reporter
Sixth Judicial District              Nashville, Tennessee
Knoxville, Tennessee
                                     MARK E. DAVIDSON
PAULA R. VOSS                        Assistant Attorney General
Assistant Public Defender            Nashville, Tennessee
Sixth Judicial District
Knoxville, Tennessee




                                                                   Page 1
                          OPINION




REVERSED AND REMANDED                                Susano, J.
          This is an appeal from an order of the Knox County

Criminal Court affirming the juvenile court’s order committing

18-year-old Matthew Lance Powell (“Powell”) to the custody of

the Department of Children’s Services for a determinate

sentence, i.e., to the child’s 19th birthday. 1   The sole issue

on this appeal is whether Powell was properly committed under

the terms of T.C.A. § 37-1-137, which provides, in pertinent

part, as follows:



         If a juvenile offender is tried and

         adjudicated delinquent in juvenile court

         for the offense of first degree murder,

         second degree murder, aggravated rape,

         aggravated sexual battery, especially

         aggravated kidnapping, aggravated robbery,

         especially aggravated robbery, aggravated

         arson, attempt to commit first degree

         murder, or violations of § 39-17-417(b),

         (i) or (j), or has been previously



                                                                   Page 2
         adjudicated delinquent in three (3) felony

         offenses arising out of separate criminal

         episodes at least one (1) of which has

         resulted in institutional commitment to

         the department of children’s services, or

         is within six (6) months of the child’s

         eighteenth birthday at the time of the

         adjudication of the child’s delinquency,

         the commitment may be for a determinate

         period of time but in no event shall the

         length of the commitment be greater than

         the sentence for the adult convicted of

         the same crime, nor shall such commitment

         extend past the offender’s nineteenth

         birthday.



T.C.A. § 37-1-137(a)(1)(B) (1996) (Emphasis added).    Powell

contends that the two violations of probation, which were the

grounds for his determinate sentence, are not delinquent acts

and, therefore, there was no “adjudication of...delinquency”

by the juvenile court to warrant the imposition of a

determinate commitment.


                              I.


         Powell, born May 11, 1981, was first adjudicated

delinquent by the Knox County Juvenile Court on June 6, 1995.




                                                                Page 3
At that time, the court found that he had committed the

delinquent acts of vandalism and burglary.     The court placed

Powell on probation.     On January 25, 1996, he was again

adjudicated delinquent for the offense of theft of property

and for violating the rules of probation by committing that

theft.     Powell was placed on probation for these offenses.     On

December 16, 1997, Powell was adjudicated delinquent for

simple possession of marijuana and theft of property and was

again placed on probation.     On October 28, 1998, Powell was

adjudicated delinquent for violating the rules of probation by

testing positive for marijuana.     At that time, the juvenile

court committed him to the custody of the Department of

Children’s Services; however, that commitment was suspended

and Powell was once again placed on probation.



            In January, 1999, two petitions were filed against

Powell, alleging that he violated the rules of his probation.

Copies of these petitions are attached to this opinion as

appendices.     The petitions alleged that he had violated the

rules of probation by: 1) testing positive for marijuana after

submitting to a random drug screen on January 7, 1999; and 2)

failing to page a Home Base worker for curfew check on January

11, 1999, and January 12, 1999.     Powell waived his right to

counsel and pled true to these allegations.     The juvenile

court appointed counsel to represent him at the dispositional

hearing.     On April 7, 1999, a dispositional hearing occurred

before a referee of the Knox County Juvenile Court.     At that



                                                                       Page 4
time, the referee revoked the suspension of Powell’s

commitment to state custody, and committed him for a

determinate sentence.     The referee found “on proof beyond a

reasonable doubt that said child is dependent and neglected

and is delinquent and is in need of treatment and

rehabilitation in that he violated the rules of his probation

by testing positive for marijuana.”     Powell filed a motion for

a hearing before the Juvenile Court Judge, which hearing was

held on May 19, 1999.     The Juvenile Court Judge confirmed the

referee’s order.    Powell appealed the order of the juvenile

court to the Knox County Criminal Court.     At a hearing on June

24, 1999, that court affirmed the juvenile court’s order of

commitment.    This appeal followed.   Powell requested an

expedited hearing, which we granted.



                                 II.



         Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to

us with a presumption that the trial court’s factual findings

are correct.    Rule 13(d), T.R.A.P.   We must honor this

presumption unless we find that the evidence preponderates

against those findings.     Id.; Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).     The trial court’s

conclusions of law, however, are not accorded the same

deference.     Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35

(Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.



                                                                    Page 5
1993).


                              III.


          We view the language of T.C.A. § 371-137(a)(1)(B)

under well-established rules of construction.    Our role is to

ascertain and, if possible, give effect to the legislative

purpose or intent as expressed in the statute.    Worrall v.

Kroger Co., 545 S.W.2d 736, 738 (Tenn. 1977).    The legislative

intent or purpose is to be derived from the natural and

ordinary meaning of the language employed by the legislature

when read in the context of the whole statute.    National Gas

Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991);

Austin v. Memphis Pub. Co., 655 S.W.2d 146, 148 (Tenn. 1983).

“The language shall not be given any forced construction that

extends or places limitations upon the import of that language.

”   James Cable Partners v. City of Jamestown, 818 S.W.2d 338,

341 (Tenn.App. 1991).   If a statute is unambiguous, we should

limit our review to the words of the statute itself.    Tennessee

Manufactured Hous. Ass’n v. Metro. Gov’t of Nashville, 798

S.W.2d 254, 257 (Tenn.App. 1990).    We should presume that the

legislature chose its words carefully, and should give to them

their ordinary and usual meaning, id.; however, in deriving

the intent of the legislature, we do not derive that intent “

from single or special words in a sentence or section but from

the statute taken as a whole.”   James Cable Partners, 818

S.W.2d at 342.



                                                                    Page 6
         T.C.A. § 37-1-137(a)(1)(B) provides that a juvenile

court may commit a child to the Department of Children’s

Services for a determinate sentence only under three

circumstances: if the child commits one of the crimes

specified in the statute; if the child has been previously

adjudicated delinquent for three felony offenses; or if the

child is within six months of his or her 18th birthday at the

time of the “adjudication of the child’s delinquency.”      The

proof reflects, and the parties agree, that the first two

circumstances do not apply to this case.   Thus, our focus is

on the third statutory ground for a determinate sentence.


         At the time of the dispositional hearing, Powell was

17 years, 11 months old.   The trial court concluded that

Powell was eligible for a determinate sentence, because, so

the court found, there had been an “adjudication of [his]

delinquency” within six months of his 18th birthday.    Powell

contends that because a violation of probation is not a

delinquent act as defined by the applicable statute, a child

cannot be adjudicated delinquent for the purposes of T.C.A. §

37-1-137(a)(1)(B) on the basis of a violation of probation.

The state counters that Powell, through his “guilty plea,”

admitted, at least by implication, that he had possessed a

controlled substance.   The state argues that since such an

offense would be a criminal offense if committed by an adult,

Powell’s violation of probation constitutes a delinquent act



                                                                  Page 7
for the purposes of T.C.A. § 37-1-137(a)(1)(B).

          To ascertain the meaning of the phrase “adjudication

of the child’s delinquency”, we turn to the definitions

provided by the legislature.   A “delinquent act” is defined in

the statute as follows:


          an act designated a crime under the law,

          including local ordinances of this state,

          or of another state if the act occurred in

          that state, or under federal law, and the

          crime is not [an offense applicable only

          to a child] and the crime is not a traffic

          offense as defined in the traffic code of

          the state other than failing to stop when

          involved in an accident pursuant to §

          55-10-101, driving while under the

          influence of an intoxicant or drug,

          vehicular homicide or any other traffic

          offense classified as a felony....


T.C.A. § 37-1-102(b)(9) (Supp. 1998).   The phrase “adjudication

of delinquency” is defined as a finding by a juvenile court “

beyond a reasonable doubt that a child has committed a

delinquent act as defined in § 37-1-102, which is an act

designated a crime under the law....”   T.C.A. § 37-5-103(2)

(1996).


          It is clear that the third eligibility prong of



                                                                   Page 8
T.C.A. § 37-1-137(a)(1)(B) requires a juvenile court to find

beyond a reasonable doubt that a child committed a delinquent

act as defined by T.C.A. § 37-1-102(b)(9).     We disagree with

Powell’s position, as we understand it, that an adjudication

of a violation of probation is never sufficient to amount to

an “adjudication of [a] child’s delinquency.”     Whether an

adjudication of a violation of probation is an adjudication of

a   delinquent act depends on the basis for the violation.      If

the basis for the violation of probation is a delinquent act

within the meaning of T.C.A. § 37-1-102(b)(9), i.e., a

criminal offense, then the finding beyond a reasonable doubt

that the child violated the rules of probation would

necessarily be an adjudication that the child committed a

delinquent act.    On the other hand, if the basis of the

violation is not a delinquent act, i.e., not a criminal

offense, then a finding that the child violated the rules of

probation would not be a finding that the child committed a

delinquent act.



          In the two petitions in the instant case, it was

alleged that Powell violated the rules of his probation by

testing positive for marijuana and by failing to report for a

curfew check.     Neither of these acts are criminal offenses and

thus cannot be considered “delinquent acts.”     The juvenile

court focused on the petition charging that Powell tested

positive for marijuana.     As to that charge, we believe it is

clear that proof that an individual has tested positive for



                                                                     Page 9
marijuana, standing alone, does not establish all of the

required elements of the crime of possession of marijuana.

Such proof does not establish when and where the marijuana was

possessed or how it was possessed or the other circumstances

of the alleged possession. Hence, proof of Powell’s positive

test does not make out the crime of possession of marijuana.



            Accordingly, we find and hold that the lower courts

erred in committing Powell to state custody for a determinate

sentence.

                                IV.


            For the foregoing reasons, the judgment of the Knox

County Criminal Court affirming the order of the Knox County

Juvenile Court committing Matthew Lance Powell to the custody

of the Department of Children’s Services for a determinate

sentence to age 19 is reversed.       This case is remanded for

such additional proceedings as may be necessary, consistent

with this opinion.    Costs on appeal are taxed to the appellee.



                                      __________________________
                                      Charles D. Susano, Jr., J.



CONCUR:



________________________
Houston M. Goddard, P.J.




                                                                   Page 10
________________________
D. Michael Swiney, J.




                           Page 11
