           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                              JANUARY 2000 SESSION
                                                                 FILED
                                                                 February 10, 2000

STATE OF TENNESSEE,                          )               Cecil Crowson, Jr.
                                             )              Appellate Court Clerk
                                                     NO. W1998-00029-CCA-R3-CD
       Appellee,                             )
                                             )       MADISON COUNTY
VS.                                          )
                                             )       HON. ROY B. MORGAN, JR.,
BILLY WAYNE MOORE,                           )       JUDGE
                                             )
       Appellant.                            )       (Probation Revocation)


FOR THE APPELLANT:                                   FOR THE APPELLEE:

GEORGE M. GOOGE                                      PAUL G. SUMMERS
District Public Defender                             Attorney General and Reporter

STEPHEN P. SPRACHER                                  R. STEPHEN JOBE
Assistant Public Defender                            Assistant Attorney General
227 W. Baltimore St.                                 Cordell Hull Building, 2nd Floor
Jackson, TN 38301-6137                               425 Fifth Avenue North
(At Hearing)                                         Nashville, TN 37243-0493

JOHN E. HERBISON                                     JAMES G. WOODALL
2016 Eighth Avenue South                             District Attorney General
Nashville, TN 37204-2202
(On Appeal)                                          SHAUN A. BROWN
                                                     Assistant District Attorney General
                                                     225 Martin Luther King Dr.
                                                     P.O. Box 2825
                                                     Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED IN PART; REVERSED IN PART; REMANDED



JOE G. RILEY, JUDGE



                                        OPINION



       This is an appeal from a revocation of probation. On March 14, 1997,

defendant pled guilty to “theft under $1,000,”1 two counts of aggravated assault,

   1
   The judgment for case number 95-817 lists the charged offense as theft over $1,000, a
Class D felony. The convicted offense is listed as “theft under $1,000,” a “Class E felony.”
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possession of a weapon in a penal institution, and robbery. On the same day,

defendant was sentenced as a Range II multiple offender to an effective sentence

of ten years in community corrections.2 Subsequently, defendant’s community
corrections sentences were transferred to supervised probation. On November 10,

1998, an order was entered revoking defendant's probation. In this appeal as of

right, defendant does not challenge the validity of the revocation. The only issue
before the court is the validity of the original sentences. Upon our review of the

record before us, we AFFIRM in part; REVERSE in part; and REMAND for further

proceedings.




                              I. PROCEDURAL HISTORY


       On March 14, 1997, defendant pled guilty to two counts of aggravated

assault, robbery, “theft under $1,000" and possession of a weapon in a penal
institution. The same day he received community corrections sentences of eight

years for one count of aggravated assault, ten years for another count of

aggravated assault, eight years for robbery, six years for “theft under $1,000" and

eight years for possession of a weapon in a penal institution. All sentences were

to be served concurrently.         On August 15, 1997, the trial court transferred
defendant’s community corrections sentences to supervised probation. Thereafter,

defendant’s probation was revoked, and defendant was ordered to serve his original

sentences. Although defendant does not contest the basis for the revocation, he
does contend his original sentences were illegal and must be set aside.




                          II. DEFENDANT’S CONTENTIONS



       Defendant argues that the underlying convictions, upon which his probation


However, the defendant was sentenced as a Range II multiple offender, and the six year
sentence he received exceeds the Range II penalty allowed for a Class E felony, but falls
within that range allowed for a Class D felony. See Tenn. Code Ann. §§ 39-14-105(2),(3)
and 40-35-112(b)(4)(5). Therefore, it is uncertain for which offense defendant was convicted
and sentenced.
  2
    Although the indictments and judgments are in the record, the guilty plea forms and the
transcript of the guilty plea hearing are not in the record. Therefore, we cannot conclusively
determine whether the plea was entered pursuant to an agreement. However, it appears from
the record that sentencing took place on the same day the guilty plea was entered, which
typically indicates the plea was entered pursuant to an agreement.
                                              2
revocation was based, are facially invalid. Defendant challenges his six year

sentence for “theft under $1,000,” claiming he was sentenced outside the

appropriate range. Defendant argues that he was convicted of theft of property over
$500 but under $1000, a Class E felony, but was sentenced within the Range II

punishment appropriate for theft of property over $1,000, a Class D felony. In

addition, defendant challenges his eight-year community corrections sentence for
possession of a weapon in a penal institution; his eight-year community corrections

sentence for aggravated assault; his ten-year community corrections sentence for

aggravated assault; and his eight-year community corrections sentence for robbery.
He claims these sentences are prohibited by Tenn. Code Ann. § 40-36-106(a). If

these sentences are “illegal,” they are a nullity and subject to correction at any time.

State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).



       Tenn. Code Ann. § 40-36-106(a) outlines the eligibility requirements for a

community corrections sentence. Subsection (2) excludes defendants convicted of
an offense committed against the person; subsection (3) requires the felony offense

to be non-violent; and subsection (4) prohibits community corrections for defendants

convicted of a felony offense, where the use or possession of a deadly weapon is

an element. Tenn. Code Ann. § 40-36-106(a).



       Defendant argues that both aggravated assault and robbery are violent

offenses against the person. Defendant further argues that aggravated assault and

possession of a weapon in a penal institution are offenses which include use or
possession of a deadly weapon as an element.               Therefore, he concludes

requirements (2), (3), and (4) disqualify him as a candidate for community

corrections, and his sentences for these four offenses are void.


                                    III. ANALYSIS

                               A. Theft under $1,000



       As to “theft under $1,000," it is unclear whether the conviction was for the

Class E felony of theft over $500 but less than $1,000 or the Class D felony of theft

over $1,000 but less than $10,000 as charged in the indictment. If the Class E
felony was intended, the six-year sentence exceeded the allowable Range II

punishment, but is not an illegal sentence. See generally Hicks v. State, 945

                                           3
S.W.2d 706 (Tenn. 1997). If the Class D felony was intended, there was simply a

clerical error in listing the offense as “theft under $1,000" rather than “theft over

$1,000.” Upon remand, the trial court shall modify this judgment to reflect the
intention of the parties.



                               B. Illegal Sentences


       The remaining four convictions present a more complex issue. Convictions

for aggravated assault, possession of a weapon in a penal institution and robbery
would ordinarily be ineligible for community corrections. See Tenn. Code Ann. § 40-

36-106(a). However, such offenses are eligible for community corrections under the

“special needs” provision of Tenn. Code Ann. § 40-36-106(c), provided the
defendant is statutorily eligible for probation. See State v.Grigsby, 957 S.W.2d 541,

546 (Tenn. Crim. App. 1997).         Thus, the eight-year community corrections

sentences for aggravated assault, possession of a weapon in a penal institution and
robbery are not illegal on their face. However, the ten-year community corrections

sentence for aggravated assault is clearly an illegal sentence since a ten-year

sentence is ineligible for probation. See Tenn. Code Ann. § 40-35-303(a). This

illegal sentence is a nullity and subject to correction at this time, even though the

judgment long ago became final. See Burkhart, 566 S.W.2d at 873. Thus, the trial

court had no authority to revoke probation on this offense and require service of the

original sentence.




                                 IV. CONCLUSION



       Case number 95-817 listing the conviction as “theft under $1,000" is

REMANDED for correction of the judgment to reflect the original intent of the

parties. The judgment should reflect either “theft over $1,000,” a Class D felony or

“theft over $500,” a Class E felony. The trial court shall also enter an order showing
that probation for the theft offense is revoked.



       The judgment of conviction for the ten-year sentence of aggravated assault
in case number 96-479 is set aside. Revocation of probation in case number 96-

479 is likewise set aside, and the case is REMANDED to the trial court. If the guilty

                                          4
plea and sentence were pursuant to a plea agreement, defendant shall have the

opportunity to withdraw his plea in case number 96-479. See Burkhart, 566 S.W.2d

at 873. If the plea was not entered pursuant to a plea agreement, the trial court shall
simply re-sentence the defendant in case number 96-479.



       The judgments of convictions and eight-year sentences for aggravated
assault (case number 96-344, Count 1), possession of a weapon in a penal

institution (case number 96-344, Count 2), and robbery (case number 96-345) are

not illegal sentences. These sentences were imposed in 1997. We see no reason
to remand for any further proceedings with regard to these three convictions. The

revocation of probation on these three eight-year sentences is AFFIRMED.




                                                  ____________________________
                                                  JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOHN EVERETT WILLIAMS, JUDGE



____________________________
ALAN E. GLENN, JUDGE




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