IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1998 December 8, 1998
Cecil W. Crowson
STATE OF TENNESSEE, ) Appellate Court Clerk
C.C.A. NO. 01C01-9707-CC-00311
)
Appellee, )
)
) MAURY COUNTY
VS. )
) HON. JAMES L. WEATHERFORD
IVAN JIMENEZ, ) JUDGE
)
Appe llant. ) (Dire ct Ap pea l - Co mm unit y
) Corrections Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP
2016 E ighth Ave nue So uth Attorney General and Reporter
Nashville, TN 37204
DARYL J. BRAND
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
MIKE BOTTOMS
District Attorney General
LEE BAILEY
Assistant District Attorney
P. O. Box 1619
Columbia, TN 38464
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On June 14, 1994, Appellant, Ivan Jim enez, p led guilty in M aury Co unty
to the sale o f cocaine , a Class C felony. In itially the trial court s entenced
Appellant to three years, six mo nths to be se rved in incarc eration and th e
remainder to be served on probation. The trial court also fined Appellant $2,000.
The sentence was to run concurrent to sentences from a different Maury Coun ty
case, to two Giles County cases, and to two Lawrence County cases. On October
12, 1994, the trial court entered an amended judgment, ordering App ellant to
three years in Community Corrections, with the first six months of that sentence
to be se rved in the county jail. The other provisions of the judgment remained the
same. On August 13, 1996, the trial court revoked Appellant’s probation and
ordered that he serve 6 0 days in the co unty jail before being released on
community corrections. On January 6, 1997, the trial court issued a warrant
against Appellant for violation of the conditions of Community Corrections. After
a hearing on April 24, 1997, the trial court revoked Appellant’s comm unity
corrections sentence and ordered that “he go into the custody of the sheriff to
serve the sentence previously imposed.” Appellant appeals from this order of
revocation, raising two issues for review:
1. Whether the lac k of a jud gme nt in the records setting forth the
conditions of Appellant’s comm unity corrections sentence precludes
revocation of the sentence, and
2. Whether Appellant’s sentence after revocation should exceed three
years.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
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FACTS
Appellant’s original plea was part of a package deal with the State which
resolved several drug charges against him in Maury, Giles, and Lawrence
Counties. Appellant entered Community Corrections and was monitored b y Mr.
Glen Smith. Mr. Smith testified at the revocation hearing, stating that he
supervised Appellant until September 1995 when Appellant tested positive for
marijuana use. Mr. Smith also recounted that Appe llant faile d to rep ort in
consistently, he failed to pay fines, and failed to do comm unity service work. M r.
Smith stated that in his affidavit for revocation he alleged that Appellant had (1)
failed to pay supervision fees, (2) failed to p ay court c osts, (3) failed to main tain
gainful employment, (4) failed to pay fines, and (5) failed to do community service
work. Mr. Smith te stified that wh en a de fendan t is assigne d to Com munity
Corrections, he fills ou t a beh aviora l contra ct, is told he must pa y a certa in
amount each mo nth to the court clerk a nd bring the rec eipt to the case o fficer,
must pay all child support payments and m ust prod uce pa y stubs to ve rify
emplo ymen t. Appellant never brought any receipts or pay stubs to Mr. Smith.
Appellant never follow ed up o n sugg estions re garding where to do com munity
service, and to Mr. Smith’s knowledge has not held a job since beginning the
Community Corrections program.
Appellant testified that he had recently obtained a job at the Murra y Ohio
plant in Lawrenceburg. He stated that he was up to date with child sup port
payments, but conceded that his father had made the payments. Appellant
testified that he had no physical impairment which would prevent him from
working.
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I. Conditions of Community Corrections
Appellant argues that without a judgment before the trial judge setting out
the conditions of the community corrections sente nce, th e judg e cou ld not make
a conscientious decision as to whether the sentence should be revoked and
incarceration ordered. In this particular case we must disagree.
First, this argument has been waived by Ap pellan t’s failure to even suggest
in the trial court that the lack of a judgment setting forth the conditions of the
sentence precluded revocation of the sentence. Failure to raise this issue in the
trial court where any prejudicial effect of the alleged error could have been
prevented waives a ppellate re view of this iss ue. Ten n. R. Ap p. P. 36(a ); See,
e.g. Jones v. State, 915 S.W .2d 1,2 (Ten n. Crim. App . 1995).
Moreover, the judgment of conviction provides for $2,000 in fines, while
a supervision fee of $1 5 per m onth is m andate d by statu te. See, Tenn. Code
Ann. § 40-36-306(a). Thus, Appellant was aware, even absent an order setting
forth other conditions of his sentence, that he was under an obligation to pay both
the fines and the supervision fee. He failed to pay either of these obligations and
his failure to do so co nstitutes su fficient grou nds to re voke Ap pellant’s co mm unity
corrections sentence. State v. William Lewis Reynolds, Giles Co., No. 01C01-
9309-CC-00306 (Tenn . Crim. A pp., filed April 7, 1994, at Na shville), app. denied
(Tenn., Jun e 27, 1994 ).
This issu e is withou t merit.
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II. Imposition of Sentence Following Revocation
Appellant argues that the trial court erred in sentencing h im to six years
following revocation of his community corrections sentence when he had
originally received a three year sentence. However, we find that the sentence
following revocation is the original three year sentence and no more.
The confusion on this point arose from an apparent misstatement of the
trial judge at the revocation hearing. The trial judge stated:
“I’m going to revoke his community corrections. The
sentence previously imposed, that is a six year
sentence, will be served. he’s had his ch ance every
way that I see he can have one. S o his com munity
correction s progra m is revo ked.”
The State concedes that the trial judge missp oke in referring to a six year
sentence and th at the s enten ce pre viously imposed was three years. Indeed, the
actual court o rder re voking com mun ity corre ctions refers only to the sentence
“previously imposed,” without specifying a term of years.
Although under some circumstances a trial court may, upon revocation of
a community corrections sentence, impose a term of incarceration up to the
maximum sentence prescribed for the offense, Tennessee Code Annotated § 40-
36-106(e)(4 ), it appears from this record that Appellant’s sentence is three years,
not six and we so hold.
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Accordingly, the judgment of the trial court is affirmed.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
DAVID G. HAYES, JUDGE
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