        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 30, 2010


                 STATE OF TENNESSEE v. MATTHEW I. TART

                  Appeal from the Circuit Court for Sullivan County
            Nos. S56438 and S56439    Robert H. Montgomery, Jr., Judge




                  No. E2009-01315-CCA-R3-CD - Filed April 21, 2010




D. K ELLY T HOMAS, J R., J., concurring.


      I join in the results reached by the majority. I write separately to note that the sentence
imposed by the trial court does not comport with the sentencing guidelines and to further
analyze a difference between Tennessee Code Annotated sections 40-35-306 and 40-35-501.

        Our sentencing guidelines are promulgated to “assure fair and consistent treatment of
all defendants by eliminating unjustified disparity in sentencing and providing a fair sense
of predictability of the criminal law and its sanctions.” Tenn. Code Ann. § 40-35-102(2).
Ultimately, in sentencing a defendant, a trial court should impose a sentence that is “no
greater than that deserved for the offense committed” and is “the least severe measure
necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann. §
40-35-103(2), (4). After pleading guilty, the Defendant was sentenced as a Range I offender
to one-and-one half years for each of his three convictions, to be served consecutively. The
trial court then required the Defendant to serve one year of each conviction in confinement
followed by six months of probation for each conviction; therefore, the Defendant is
effectively serving three sentences “one at a time in [a] series.” Charles Wayne Rooker v.
Donal Campbell, No. M1999-01657-COA-R3-CV, 2003 WL 724485, at *3 (Tenn. Ct. App.
March 4, 2003); see also Christopher A. Johnson v. State, No. E2002-01208-CCA-R3-PC,
2003 WL 21145504, at *2 (Tenn. Crim. App. May 16, 2003), perm. app. denied (Tenn. Oct.
6, 2003). Based upon the record before us, this sentence does not comport with the
principles of sentencing when the Defendant was charged with violating the motor vehicle
habitual offender law, speeding, and leaving the scene of an accident.

       Regardless of the validity of the sentence in conjunction with the purpose of the
sentencing guidelines, the majority believes that a sentence of three years in confinement
runs afoul of Tennessee Code Annotated section 40-35-306. The statute states that a
defendant “may be required to serve a portion of the sentence in continuous confinement”
and that the portion of the sentence served in confinement may not exceed one year. Tenn.
Code Ann. § 40-35-306(a).

        I acknowledge that Tennessee Code Annotated section 40-35-501(a)(3) treats
consecutive sentences as one sentencing term, thereby removing the consecutive sentence
term from the provision requiring mandatory release from confinement upon reaching the
release eligibility date. Indeed, the statute states, “The release shall not occur for sentences
of two (2) years or less when the sentences are part of a consecutive sentence whose term is
greater than two (2) years.” Tenn. Code Ann. § 40-35-501(a)(3). Id. (emphasis added).
Thus, the legislature has declared that the release of an inmate with a sentence term
exceeding two years should be decided by the Board of Probation and Parole. If section 40-
35-306 is read in conjunction with section 40-35-501, then it would appear that the majority’s
analysis is correct. However, if section 40-35-306 is read independently of section 40-35-
501, then section 40-35-306 would apply to each individual sentence, thereby exposing
defendants to an unlimited series of year-long jail sentences. I believe that such an
application of section 40-35-306 would violate the principles of our sentencing act in this
case and in general would damage the “fair sense of predictability of the criminal law and
its sanctions.”




                                                   D. KELLY THOMAS, JR., JUDGE




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