            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1997                FILED
                                                              March 23, 1998

                                                             Cecil Crowson, Jr.
STATE OF TENNESSEE,                )                         Appellate C ourt Clerk
                                   )       No. 03C01-9706-CR-00232
       Appellee                    )
                                   )       UNION COUNTY
vs.                                )
                                   )       Hon. LEE ASBURY, Judge
ROBERT H. McCURDY,                 )
                                   )       (Aggravated Sexual Battery)
       Appellant                   )



                        SEPARATE CONCURRING OPINION


       I concur in the results reached by the majority. For those reasons expressed

in State v. Cooper, No. 01C01-9604-CC-00150 (Tenn. Crim. App. at Nashville, Nov.

17, 1997) (Hayes, J., concurring), I write separately to note my agreement with the

trial judge that the so-called truth in sentencing provisions, as codified in Tenn. Code

Ann. § 40-35-201, are unconstitutional. Accordingly, I find no error in the trial court's

rejection of the requested instructions.




                                   ____________________________________
                                   DAVID G. HAYES, Judge
