         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 16, 2003

                   STATE OF TENNESSEE v. TIM MATTINGLY


                 Direct Appeal from the Circuit Court for Cheatham County
                           No. 12822     Robert E. Burch, Judge



                   No. M2002-02765-CCA-R3-CD - Filed September 2, 2003


The trial court found the defendant, Tim Mattingly, violated the terms of his ten-year community
corrections sentence. It ordered him to serve three years “day for day” in the county jail before
serving the remainder of his ten-year sentence on community corrections. In this appeal, the defendant
argues the trial court acted without authority in imposing this sentence. We conclude the trial court
imposed an illegal sentence and remand for further proceedings.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                        Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

William B. (Jake) Lockert, III, District Public Defender (on appeal); Steve Stack, Assistant District
Public Defender (at hearing); and L. Broner McCoy, Ashland City, Tennessee (at hearing), for the
appellant, Tim Mattingly.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General; and Robert S. Wilson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On December 30, 1997, the defendant pled guilty to two counts of aggravated burglary, ten
counts of burglary, one count of felony attempted theft, and two misdemeanors. He received an
effective ten-year sentence on community corrections.

       On October 27, 1998, the trial court entered a “Community Corrections Revocation Order”
in which it found the defendant had violated community corrections; “revoked” the defendant’s
community corrections sentence; and required him to serve six months in the county jail and return
to community corrections.
        On June 28, 2000, the trial court filed a second order in which it found the defendant had
again violated community corrections; “revoked” the defendant’s community corrections sentence;
and ordered him to serve eleven months and twenty-nine days and to complete a drug rehabilitation
program. The defendant was apparently placed back on community corrections after his confinement.

         Then, at a hearing on October 19, 2001, the trial court found the defendant had again violated
the terms of his community corrections sentence after his release from incarceration. At the close
of the hearing, the court stated the defendant was “sentenced to [the] county jail for three years to
serve day for day and then will be placed back out on community correction Level I supervision in
the custody of the Sheriff.” In the “Violation of Community Corrections Order” filed October 24th,
the trial court ordered:

       1. That the Defendant’s Community Correction sentence should be revoked and the
       Defendant placed in the Tennessee Department of Correction for three (3) years and
       shall serve same day for day.

       2. After Defendant serves said three (3) years day for day, he will be placed back on
       Community Corrections for supervised probation on Level 1.

        In October 2002, while apparently serving the three-year period of incarceration in the
county jail, the defendant filed a motion seeking an alternative sentence in lieu of the remaining two
years of incarceration. At the motion hearing on October 28, 2002, the defendant contended he was
illegally sentenced to a period of incarceration that exceeded one year. The trial court denied the
defendant’s motion. In denying the motion, the trial court stated:

       [The prior order] is actually incorrect[.] [H]is community corrections sentence was
       not revoked[,] that was not the order of the Court[,] that is not my practice nor did
       I send him back to the department of corrections. He . . . remained on community
       corrections[.] I simply required him to serve three years day for day in the county
       work house and then be placed back out on community corrections as a penalty for
       his failure to abide by the rules of community corrections. This was not
       resentencing. I did not have [a] presentence report and therefore [it] is not a split
       confinement[.] [I]t is simply a punishment for his violation. I know that the court
       has on two prior occasions punished [the defendant] for his failure [to] abide [by]
       rules of community corrections and this is simply a first time of six months[,] second
       time was a year[,] and this time was three years. . . .

       The trial court then entered an “Amended Violation of Community Corrections Order” in
which it directed:

        1. That the Defendant has violated his Community Correction sentence but shall
        remain on the Community Corrections Program and shall be placed in the Tennessee
        Department of Correction in Cheatham County Jail to serve three (3) years and shall
        serve same day for day.


                                                 -2-
         2. After Defendant serves said three (3) years day for day, he will [be] released back
         onto the Community Corrections for supervised probation on Level 1.

         3. This sentence is punishment for the violation, not resentencing.

             MODIFICATION OF A COMMUNITY CORRECTIONS SENTENCE
                           FOLLOWING A VIOLATION

       The defendant contends the trial court acted without authority when it imposed three years
of incarceration as a “punishment” for his violation of the terms of his community corrections
sentence. We agree.1

        When a defendant violates the terms of a community corrections sentence, the trial court may
either revoke the community corrections sentence and resentence the defendant, see Tenn. Code
Ann. § 40-36-106(e)(4), or it need not revoke and may allow the defendant to continue to serve the
community corrections sentence. If the trial court revokes the community corrections sentence, it
“may resentence the defendant to any appropriate sentencing alternative, including incarceration,
for any period of time up to the maximum sentence provided for the offense committed, less any
time actually served [on community corrections].” Id. If community corrections is revoked, the trial
court must conduct a new sentencing hearing in accordance with the Criminal Sentencing Reform
Act and may even impose a greater sentence than the original sentence. See State v. Samuels, 44
S.W.3d 489, 493-94 (Tenn. 2001); State v. Crook, 2 S.W.3d 238, 240 (Tenn. Crim. App. 1998).

       If the trial court opts to allow a defendant to continue serving the community corrections
sentence despite a violation, it may impose, as a condition, additional requirements including a
period of incarceration. This is authorized because the trial court “retain[s] the authority to alter or
amend at any time the length, terms or conditions” of the community corrections sentence. Tenn.
Code Ann. § 40-36-106(e)(2). However, in the event the trial court imposes incarceration as a
condition, the period of confinement may not exceed one year. See State v. Jimmy D. Johnson, No.
03C01-9602-CC-00062, 1997 Tenn. Crim. App. LEXIS 1037, at **6-7 (Tenn. Crim. App. Oct. 16,
1997, at Knoxville).

                                                      ANALYSIS

        Initially, we observe that the first two revocation orders entered on October 27, 1998, and
June 28, 2000, were improper because the trial court “revoked” community corrections; yet, it did
not resentence the defendant. It simply imposed an additional period of incarceration and placement
back on the community corrections program. Nevertheless, these ordered periods of confinement
have already been served. We see no reason to further address them.


         1
          W e also no te that the trial court im properly o rdered “d ay for day” sentencing. See State v. Alicia Tharpe, No.
M2002-00992-CCA-MR3-CD, 2003 T enn. Crim. App. LEX IS 306, at *9 (Tenn. Crim. App. Ap r. 4, 2003, at Nashville),
perm. to app. pending; State v. Jeannie Hudson, No. E2001-00377-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 248,
at **11-12 (T enn. C rim. App. F eb. 19, 20 02, at Kno xville), perm. to app. denied (Tenn. 2002 ).

                                                            -3-
         As to the latest order, it is clear the trial court found the defendant violated the terms of his
community corrections sentence and intended to impose a period of incarceration as a condition of
his continued service of his sentence in community corrections. However, the trial court erred by
imposing a term of incarceration greater than one year. See id. The resulting three-year sentence
is, therefore, illegal as is the “day for day” provision.2

        Because the sentence is void, we remand this matter to the trial court for further proceedings.
At the hearing, the trial court may revoke the defendant’s community corrections sentences, conduct
a new sentencing hearing, and resentence him. In this event, the trial court must enter a uniform
judgment document for each affected conviction and shall set forth the sentence for each conviction,
all pursuant to the procedure suggested in State v. Timothy M. Roberts, No. M2002-00806-CCA-
R3-CD, 2003 Tenn. Crim. App. LEXIS 230, at **6-8 (Tenn. Crim. App. Mar. 18, 2003, at
Nashville). The defendant shall be granted jail credit for all days of confinement, including those
days served on the two prior revocations, and for all days served in community corrections. See
Tenn. Code Ann. § 40-36-106(e)(4).

        In the alternative, the trial court may decline to revoke community corrections. In that event,
the defendant shall be released immediately because he has served in excess of the one-year period
of authorized confinement. He would then continue on the community corrections program.

                                     CRIMINAL CONTEMPT

        The defendant also argues the trial court erroneously held him in criminal contempt for
violating the terms of his community corrections sentence. However, there is no indication in the
record that the trial court sanctioned the defendant for contempt. This argument is without merit.

                                           CONCLUSION

        We hold the trial court imposed an illegal sentence based upon violation of the defendant’s
community corrections program. We reverse the judgment of the trial court and remand the matter
for further proceedings consistent with this opinion. The matter of bond pending this hearing shall
be determined by the trial court.




                                                         JOE G. RILEY, JUDGE




        2
            See n.1.

                                                   -4-
