             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                     AT KNOXVILLE
                                                                        October 18, 1999

                                 JUNE SESSION, 1999                    Cecil Crowson, Jr.
                                                                      Appellate Court Clerk




STATE OF TENNESSEE,                  *
                                     *      No. 03C01-9808-CR-00284
       Appellee,                     *
                                     *      KNOX COUNTY
vs.                                  *
                                     *      Hon. Mary Beth Leibowitz, Judge
JEFFREY B. LINDEMEYER,               *
                                     *      (Selling Drugs in School Zone)
       Appellant.                    *




                              SEPARATE CONCURRING



       I agree that the Drug-Free School Zone Act requires incarceration in the

Department of Correction. This conclusion is based upon a comparison of the plain

language of the Act itself with the provisions of the Tennessee Community

Corrections Act of 1985.



       A violation of the Drug-Free School Zone Act requires that the defendant be

punished one classification higher than provided in § 39-17-417(b)-(I) and “shall be

required to serve at least the minimum sentence for such defendant’s appropriate

range of sentence.” See Tenn. Code Ann. § 39-17-432(b) & (c) (emphasis added).

The Act specifically provides that “[a]ny sentence reduction credits . . .shall not

operate to permit or allow the release of such defendant prior to full service of such

minimum sentence,” see Tenn. Code Ann. § 39-17-432 (c) (emphasis added), and

that “the provisions . . .relative to release eligibility status and parole, shall not apply

to or authorize the release of a defendant.” See Tenn. Code Ann. § 39-17-432(d)

(emphasis added). Thus, the Act, by its plain language clearly contemplates an

incarcerative sentence.
       “The Community Corrections Act, on the other hand, was established to

provide “front-end community based alternatives to incarceration.” See Tenn. Code

Ann. § 40-36-103(1) (emphasis added); see also Tenn. Code Ann. § 40-36-104(4)

(reduce the number of nonviolent felony offenders committed by participating

counties to correctional institutions and jails by punishing these offenders in

noncustodial options). Thus, although the Community Corrections Act provides for

day for day jail credit for time spent in the community corrections program, see

Tenn. Code Ann. § 40-36-106(3)(B), a sentence involving the community

corrections program is not a sentence of confinement to which release eligibility

dates and good time credits apply. Accordingly, a community corrections sentence

is not a sentence of confinement, but rather a non-incarcerative sentencing

alternative.



       Moreover, under the authority of the Community Corrections Act, the trial

court possesses the sole authority to alter, amend or terminate an offender’s

community corrections sentence. See Tenn. Code Ann. § 40-36-106(e)(1)-(5).

However, the Drug-Free Zone Act addresses only the authority of “the governor or

the board of paroles” relative to the release of a defendant. See Tenn. Code Ann.

§ 39-17-432(e) (governor or board of paroles shall not release or cause the release

of a defendant sentenced under this act prior to the service of the entire minimum

sentence). By omission of the trial court’s authority in this subsection, it may

logically be inferred that the legislature did not intend to permit service of the

“mandatory minimum sentence” in a community based sentencing alternative.



       For these reasons, I would affirm.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




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