IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL 1998 SESSION April 30, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9707-CC-00269
Appellant, )
) Jefferson County
V. )
) Honorable Ben W. Hooper, II, Judge
)
JESSE JAMES GILBERT, JR., ) (State Appeal - Sentencing)
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
John Knox Walkup Edward C. Miller
Attorney General & Reporter District Public Defender
Timothy F. Behan Robert W. Scott
Assistant Attorney General Assistant Public Defender
Criminal Justice Division Fourth Judicial District
425 Fifth Avenue North P.O. Box 416
Nashville, TN 37243-0493 Dandridge, TN 37725-0416
Al Schmutzer, Jr.
District Attorney General
James L. Gass
Assistant District Attorney General
Fourth Judicial District
P.O. Box 70
Dandridge, TN 37725-0070
OPINION FILED: ___________________
REVERSED AND REMANDED FOR RESENTENCING
PAUL G. SUMMERS,
Judge
OPINION
The appellee, Jesse James Gilbert, Jr., was convicted by a jury of rape in
the Criminal Court of Jefferson County. The court sentenced the appellee to
serve one year in the county jail, with the remainder of his sentence to be served
in the community corrections program. The state appealed. The issue is
whether the court erred in sentencing the appellant to community corrections
when he was convicted of a violent felony. We respectfully reverse the judgment
of the trial court and remand for resentencing.
The appellee was convicted of rape, a class B felony. The sentencing
range for the appellant as a Range I, class B felon is eight to twelve years.
Tenn. Code Ann. §§ 39-13-503 (Supp. 1996) & 40-35-112(a)(2) (1990).
The court sentenced the appellee to one year in the county jail followed by
seven years supervision pursuant to the Community Corrections Act (“the Act”)
codified at Tennessee Code Annotated §§ 40-36-101 through 306 (Supp. 1996).
The court began at the minimum sentence of eight years. The court found that
no enhancement factors applied. The trial court carefully considered the factors
required by the Criminal Sentencing Reform Act. See Tenn. Code Ann. §§ 40-
35-101 et seq. (Supp. 1996). He followed the procedure prescribed by the
sentencing act. The court stated his findings for the record. The court noted his
confidence in the appellee’s ability to reform. He warned the appellee that if he
should come back before the court because of sentence violations, then the
court could sentence him to a sentence greater than eight years. Tenn. Code
Ann. § 40-36-106(e)(4) (Supp. 1996).
Both the state and appellee agree that the appellee does not qualify for
punishment under the Community Corrections Act codified at Tennessee Code
Annotated § 40-36-101-306 (Supp. 1996 ). One of the purposes of the Act is to
establish a policy within the state to punish selected, nonviolent felony offenders
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in front-end community based alternatives to incarceration, thereby reserving
secure confinement facilities for violent felony offenders. Tenn. Code Ann.
§ 40-36-103 (Supp. 1996). An offender must meet minimum criteria before the
court is required to consider punishment pursuant to the Act. The appellee does
not meet two of those criteria because he committed a violent offense and he
committed a felony offense involving a crime against a person. Tenn. Code
Ann. § 40-36-106(a)(2) & (3). Therefore, the sentence is not authorized by the
sentencing act.
The state essentially argues that it is inconsistent to make defendants
convicted of rape eligible for straight probation but not eligible for stricter forms of
alternative sentencing such as community corrections. The appellee contends
that he is eligible for probation because he received an eight year sentence for
his crime. Tenn. Code Ann. § 40-35-303(a) (Supp. 1996). The appellee is not
presumed to be a favorable candidate for alternative sentencing because he was
convicted of a class B felony. Tenn. Code Ann. § 40-35-102(6) (Supp. 1996).
However, the trial court may still consider the appellee for probation pursuant to
Tenn. Code Ann. § 40-35-102(5).
The adjudged sentence is not authorized by the legislature. While we
may agree with the reasoning of the state, a change in the sentencing act is
within the province of the legislature. Therefore, we respectfully remand this
case to the trial court for resentencing.
______________________________
PAUL G. SUMMERS, Judge
CONCUR:
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_____________________________
JERRY L. SMITH, Judge
_____________________________
CURWOOD W ITT, Judge
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