State v. Bruce Cole

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1998 SESSION FILED June 11, 1998

Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) NO. 02C01-9708-CC-00324 Appellee, ) ) GIBSON COUNTY VS. ) ) HON. DICK JERMAN, JR., BRUCE COLE, ) JUDGE ) Appellant. ) (Sentencing)

CONCURRING/DISSENTING OPINION

I concur in all respects with the opinion by my colleague, Judge David G.

Hayes, with exception of the refusal to allow certain credits. I believe the statutory

scheme clearly requires credit for time served in a community corrections program

even if participation in the program is a condition of probation.

As noted by my colleagues, the statute expressly requires credit for time spent

in a community corrections program when a community corrections sentence is

revoked. See Tenn. Code Ann. § 40-36-106(e)(4). My colleagues then conclude,

however, that to allow credit for participation in the community corrections program

when it is a condition of probation would in most cases only encourage the

probationer to intentionally violate probation after completion of his Release Eligibility

Date so as to terminate his sentence and all further supervision. I find nothing in our

law indicating that a probation revocation and reinstatement of the original

penitentiary sentence terminates the sentence just because the offender has

surpassed his Release Eligibility Date. Obviously, one is not necessarily released,

nor is the sentence terminated, upon reaching a Release Eligibility Date. See Tenn.

Code Ann. § 40-35-501 et. seq. The determination of release must be made by the

Board of Paroles.

Moreover, my colleagues sweepingly conclude that a probationer is not

entitled to jail credit. In doing so they overlook Tenn. Code Ann. § 40-36- 106(e)(3)(B). If an offender is first placed in a community corrections program,

subsequently transferred to ordinary probation and then violates probation, the court

is expressly required to award credit for the time served in the community corrections

program upon probation being revoked.

Community corrections is a special program with strict requirements. The

legislative intent is clear: a person participating the community corrections program

gets credit for the time served in the program. To allow credit for one participating

only in the community corrections program and to deny credit for one participating in

both community corrections and probation does not make a whole lot of sense to me.

It’s just that simple.

For these reasons, I respectfully dissent from the denial of credit for the time

of participation in the community corrections program.

_________________________________ JOE G. RILEY, JUDGE