         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      June 4, 2002 Session

                STATE OF TENNESSEE v. DEBRA KAY THOMAS

                        Appeal from the Circuit Court for Henry County
                             No. 12113    Julian P. Guinn, Judge



                      No. W2001-02039-CCA-R3-CD - Filed July 18, 2002


The defendant, Debra Kay Thomas, appeals the Henry County Circuit Court’s resentencing her upon
revocation of her community corrections sentence. She claims that the trial court erred in failing to
give her credit for the time she served in confinement and in the community corrections program
under her original sentence. The state agrees. We hold that the defendant was improperly sentenced
and remand the case for resentencing.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT, JR., JJ., joined.

Victoria L. DiBonaventura, Paris, Tennessee, for the appellant, Debra Kay Thomas.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
G. Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        On May 31, 1994, the defendant pled guilty to possession of a Schedule II controlled
substance with intent to deliver or sell, a Class B felony; possession of a Schedule III controlled
substance with intent to deliver or sell, a Class D felony; and simple possession of marijuana, a Class
A misdemeanor. The trial court sentenced her as a Range I, standard offender to an effective
sentence of eight years with seven years to be served in the community corrections program upon
her serving one year in confinement. On July 3, 2001, a community corrections violation warrant
was filed alleging that the defendant had tested positive for marijuana on May 29, 2001. On July
9, 2001, the trial court revoked the defendant’s community corrections sentence.
         At the resentencing hearing, Joseph Fry, the defendant’s community corrections supervisor,
testified the defendant had done well in community corrections until she tested positive for
marijuana. He said failing the drug screen was the only reason for revoking her community
corrections sentence. He said that before the defendant tested positive for marijuana, he had
discussed her drug problem with her and she had enrolled in an inpatient treatment program. He said
that the defendant stayed in the program only four of five days and that she left the program against
medical advice. He said the defendant cited her high blood pressure and other medical problems as
reasons for leaving the treatment program.

       The defendant testified that when she entered the inpatient treatment program, her blood
pressure “shot up.” She said she left the program and went into the hospital to get treatment for her
high blood pressure. She said that after she left the hospital, she began an intensive outpatient drug
treatment program at Baptist Hospital. She said she completed that program and began an aftercare
program in which she received counseling once or twice a month at the Carey Counseling Center.
She said she was going to stay in the aftercare program in order to remain drug free. She said she
wanted to be returned to community corrections.

        The presentence report reflects that the then forty-one-year-old defendant had dropped out
of high school in the tenth grade and was trying to get her GED. The defendant reported having
several medical problems and suffering from manic-depressive illness. According to the report, the
defendant started using marijuana in 1973 and relapsed in May 2001, when medical and personal
problems became too much for her to handle. The defendant was previously convicted of a traffic
offense.

        The trial court noted that the minimum sentence in this case is eight years. See Tenn. Code
Ann. § 40-35-112(a)(2). Although the trial court stated that enhancement factors applied, it decided
not to enhance the defendant’s sentence. The trial court found that no mitigating factors applied.
It resentenced the defendant to eight years, with six months to be served in continuous confinement
and the remainder of the sentence to be served in the community corrections program. When
defense counsel asked if the defendant would get credit for the time she served under the original
sentence, the trial court stated that the defendant could not “credit the old sentence against the new
one.”

        The defendant claims that the trial court erred in failing to give her credit for the time she
spent in confinement and in the community corrections program under her original sentence. She
contends that in refusing to give her any credit, the trial court sentenced her in effect to sixteen years
when the maximum sentence within her range is only twelve years. The state agrees that the
defendant is entitled to receive credit for the time she served in community corrections. We
conclude that the trial court improperly sentenced the defendant.

        Pursuant to Tenn. Code Ann. § 40-36-106(e)(4), a trial court has the power, upon revocation
of a community corrections sentence, to resentence a defendant to a period of incarceration up to the
maximum for the offense originally committed. The trial court must resentence the defendant within

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the range of the original sentence. State v. Patty, 922 S.W.2d 102, 104 (Tenn. 1995). Moreover,
any resentencing is subject to a defendant receiving credit for the time he or she served in the
community corrections program. Tenn. Code Ann. § 40-36-106(e)(4). A defendant is entitled to
credit for any other time spent in confinement for the original sentence. Tenn. Code Ann. § 40-23-
101(c). In this case, the defendant should have received such credit for the time she served in jail
and in the community corrections program under her original sentence.

       In consideration of the foregoing, we hold that the trial court erred in resentencing the
defendant without giving her credit for time served in confinement or in the community corrections
program under her original sentence. We remand the case for resentencing in light of our opinion.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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