            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            AUGUST 1998 SESSION
                                                          October 7, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
TERRY L. BAKER,                      )
                                     )   C.C.A. NO. 01C01-9711-CR-00522
            Appellant,               )
                                     )   DAVIDSON COUNTY
VS.                                  )
                                     )   HON. SETH NORMAN,
STATE OF TENNESSEE,                  )   JUDGE
                                     )
            Appellee.                )   (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:


PAUL J. BRUNO                            JOHN KNOX WALKUP
Washington Square Bldg.                  Attorney General & Reporter
222 Second Ave., North, Suite 350M
Nashville, TN 37201-1652                 DEBORAH A. TULLIS
                                         Asst. District Attorney General
                                         Cordell Hull Bldg., 2nd Fl.
                                         425 Fifth Ave., North
                                         Nashville, TN 37243

                                         VICTOR S. JOHNSON, III
                                         District Attorney General

                                         MARY HAUSMAN
                                         Asst. District Attorney General
                                         Washington Square Bldg.
                                         222 Second Ave., North, Suite 500
                                         Nashville, TN 37201




OPINION FILED:



REVERSED AND REMANDED FOR HEARING


JOHN H. PEAY,
Judge
                                       OPINION



              The petitioner pled guilty to six counts of drug charges in Davidson County

case number 92-A-647 on May 16, 1995. He was sentenced as a Range I offender to

concurrent ten year sentences to be served in the Community Corrections program. On

January 19, 1996, the petitioner was found guilty of violating his community corrections

sentence and the court increased his sentence from ten years to twenty years to serve.

On December 11, 1996, the petitioner filed a petition for post-conviction relief. The

petition was dismissed by the trial court on the grounds that it was filed outside the

applicable statute of limitations. The petitioner now appeals and argues the post-

conviction court erred when it dismissed the petition.         We agree and reverse the

judgment of the court below and remand this cause for a hearing on the merits of the

petition.



              In his post-conviction petition, the petitioner alleges that it was illegal and,

therefore, unconstitutional for the trial court to increase his sentence from ten years to

twenty years. The petitioner further alleges that his petition should not be barred for

falling outside the statute of limitations. Petitioner argues that since the court action

challenged in his post-conviction petition occurred on January 19, 1996, his petition, filed

on December 11, 1996, was filed within the one year statute of limitations.



              There is a one year statute of limitations period applicable to all post-

conviction petitions filed after May 10, 1995. T.C.A. § 40-30-202. The statute specifically

states that “a person in custody under a sentence of a court of this state must petition for

post-conviction relief under this part within one (1) year of the date of the final action of

the highest state appellate court to which an appeal is taken or, if no appeal is taken,



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within one (1) year of the date on which the judgment became final, or consideration of

such petition shall be barred.” In petitioner’s case, there was no direct appeal or

specified post trial motion. This Court has held “[i]f one convicted of a crime takes no

action to perfect his right to appeal, the statute of limitations [applicable to post-conviction

petitions] begins to run from the date of final conviction.” Warren v. State, 833 S.W.2d

101, 102 (Tenn. Crim. App. 1992) (emphasis added). Therefore, as the resentencing

hearing was the final action from which there was no appeal, the statute of limitations did

not begin to run until thirty days after petitioner was resentenced.1



                 Since petitioner’s post-conviction petition is not barred by the statute of

limitations, it is remanded to the trial court for a hearing on the merits of the petition. We

note that in the resentencing hearing it is clear the judge had the authority to resentence

the petitioner.



                 The Tennessee Community Corrections Act of 1985, under which the

petitioner was sentenced, states

                 (e)(4) The court shall also possess the power to revoke the
                 sentence imposed at any time due to the conduct of the
                 defendant or the termination or modification of the program to
                 which the defendant has been sentenced, and the court 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 in any community-based
                 alternative to incarceration.

T.C.A. § 40-36-106 (Supp. 1995).



                 Although this statute makes it clear that the trial judge has the authority to

resentence a defendant originally sentenced under the Community Corrections Act, the


        1
            The State has conceded that the statute of limitations applicable to post-conviction petitions
did no t beg in to ru n unt il the ju dgm ent to rese nten ce th e pet itione r bec am e fina l.

                                                     3
statute is explicit in that a judge can only sentence a defendant “up to the maximum

sentence within the appropriate range.” In addition, the Tennessee Supreme Court has

held that “a trial judge imposing a new sentence as a result of community corrections

failure is bound to sentence the defendant within the range of the original sentence.”

State v. Patty, 922 S.W.2d 102, 104 (Tenn. 1995).



              There are also certain formalities required by statute if the trial court opts

to enhance a sentence. First, the court must state its reasons for imposing a new

sentence on the record. T.C.A. §§ 40-35-209(c) and -210(f)-(g). The statute requires

that the record of the sentencing hearing “shall include specific findings of fact upon

which application of the sentencing principles was based.” T.C.A. § 40-35-209(c). The

statute further requires that

              (f) Whenever the court imposes a sentence, it shall place
              on the record either orally or in writing what enhancement
              or mitigating factors it found, if any, as well as findings of
              fact as required by §40-35-209.
              (g) A sentence must be based on evidence in the record
              of the trial, the sentencing hearing, the presentence report,
              and, the record of prior felony convictions filed by the district
              attorney general with the court as required by §40-35-202(a).

T.C.A. § 40-35-210.



       These statutory provisions are mandatory. State v. Ervin, 939 S.W.2d 581, 584

(Tenn. Crim. App. 1996)(citing State v. Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App.

1987)). This Court has held the “purpose of these statutory requirements is to guarantee

the preparation of a proper record for appellate review. An appellate court cannot review

either the length or method of serving a sentence unless the findings of the trial court are

contained in the record.” Ervin, 939 S.W.2d at 584.



              In the case at bar, the record is unclear regarding the resentencing of the


                                             4
petitioner. The only reference to resentencing the petitioner is a notation on the judgment

form of the original sentence to the community corrections program which reads, “1-19-96

PV Sustained sentence increased to 20 years consecutive w/Division III sentence jcr: 1-

22-92 to 1-27-93 9-8-94 to 8-7-95.” Since there is a maximum of twelve years that may

be imposed on any Range I offender convicted of a class B felony, any sentence over

twelve years would be illegal. See Patty, 922 S.W.2d at 104.



              In sum, we conclude petitioner’s post-conviction petition was not barred by

the statute of limitations. We therefore reverse the trial court’s dismissal of such petition

and remand this cause to the trial court for a hearing on the merits of the petition.




                                                  ______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
THOMAS T. W OODALL, Judge



______________________________
L. TERRY LAFFERTY, Special Judge




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