State v. McCammon

OPINION

DUNCAN, Judge.

The appellee-defendant, Janet Lee McCammon, pled guilty to two (2) cases of simple robbery, and received concurrent penitentiary sentences of not less nor more than five (5) years. By authority of T.C.A. § 40-3105,1 the trial court ordered her sentences to be served in the county jail. Thereafter, upon her application, the trial court suspended her sentences and placed her on probation.

The State has appealed the trial court’s ruling and contends that the trial court was without authority to grant relief to the defendant in these cases, insisting that by virtue of T.C.A. § 40-2901, the defendant was not an eligible candidate for probation consideration. We agree.

*135T.C.A. § 40-2901 authorizes trial judges to suspend the sentence of a defendant (as “defendant” is defined in that section) and to place him on probation. However, T.C.A. § 40-2901 excludes from the definition of “defendant” certain persons who have been convicted, including a person who “has been convicted of two (2) or more felonies for which the maximum sentence provided by law exceeds ten (10) years confinement in the state penitentiary.” The punishment for robbery is a sentence of “not less than five (5) nor more than fifteen (15) years.” T.C.A. § 39-3901. Since the present defendant has been convicted of two (2) felonies for which the maximum sentence provided by law exceeds ten (10) years, she is not within the definition of a “defendant” who can have her sentence suspended and be placed on probation under T.C.A. § 40-2901.

Our Court dealt with a similar question in Scott v. State, 560 S.W.2d 922 (Tenn.Cr.App.1977). There we held that the defendant, who had been sentenced to the penitentiary for two (2) or more felonies for which the law provided a maximum sentence in excess of ten (10) years, was precluded from being placed on probation by the express provisions of T.C.A. § 40-2901.

The defendant argues that even though she may not be eligible for probation consideration under T.C.A. § 40-2901, she is still eligible for a suspended sentence under T.C.A. § 40-2903. We do not accept this argument.

Initially we point out that there is no such thing as probation without a suspension of the sentence, and likewise a sentence cannot be suspended without placing the defendant on probation. State v. King, 603 S.W.2d 721 (Tenn.1980). Furthermore, T.C.A. § 40-2903 provides, in part, as follows:

No trial judge shall have the authority under the provisions of § 40-2901, to suspend the execution of sentence after the defendant shall have begun to serve such sentence, except where the sentence is to confinement in the county jail or workhouse for the commission of a misdemeanor or a felony pursuant to § 40-3105, for a period of time not more than five (5) years, with or without a fine. In such cases the trial judge may at any time after the defendant has actually served not less than thirty (30) days of such jail or workhouse sentence, suspend the remainder thereof. . ..

However, T.C.A. § 40-2903 is not to be construed as a separate grant of authority to suspend sentences. In State v. King, supra, the Supreme Court, in reference to T.C.A. § 40-2903, said:

In short, that Code section deals with the time frame within which trial judges may exercise the power to suspend sentences, and does not warrant expressly or by implication any finding of legislative intent to authorize suspensions without probation or without probation reports, or to be an island unto itself, within the statutory scheme governing the suspension of sentences and probation. 603 S.W.2d at 724.

Chapter 29 of the Code contains our probation statutes. T.C.A. § 40-2901 to 2909. The sections contained in chapter 29 are in pari materia and must be construed together. See State v. King, supra. T.C.A. § 40-2901 defines the term “defendant,” not only for that section, but also “as used in this chapter.” (emphasis added). As stated earlier, the present defendant is not a chapter 29 “defendant” because her convictions exclude her from the definition of that term. Therefore, since the terms of T.C.A. § 40-2903 apply only to chapter 29 “defendants,” that section can afford no relief to the present defendant.

In an almost identical case, State v. Langford, No. 56 (Tenn.Cr.App., Jackson, February 28, 1980), our Court ruled as we do here. Langford was serving penitentiary sentences in the penal farm by authority of T.C.A. § 40-3105. His sentences were of the type that made him ineligible for probation consideration under T.C.A. § 40-2901. Notwithstanding, the defendant filed a petition for a suspended sentence and relied upon T.C.A. § 40-2903. The trial judge held that he had no authority to grant *136defendant’s petition because of the defendant’s ineligibility for probation under T.C.A. § 40-2901. Our Court, in affirming the trial judge, held that T.C.A. § 40-2901 and 40-2903 must be construed in pari materia, and that if a defendant is not an eligible candidate for probation under T.C.A. § 40-2901, then the provisions of T.C.A. § 40-2903 could not be invoked to provide a remedy to him. While the Langford opinion is unpublished, we agree with the reasoning contained therein.

Finally, we do not agree with the defendant’s argument that a defendant who is sentenced to serve a penitentiary sentence in the workhouse under T.C.A. § 40-3105 cannot get consideration for good and honor time credits and parole relief, and that trial judges should be allowed to suspend sentences under T.C.A. § 40-2903 so as to allow this relief. The defendant makes an erroneous assumption regarding these matters.

An inmate serving a penitentiary sentence in the workhouse is still serving a penitentiary sentence and is entitled to the same good and honor time credits and parole considerations which he would receive if confined in the state penitentiary. Our Supreme Court has so held in Gilliam v. State, 126 S.W.2d 305, 174 Tenn. 388 (1939).

We hold that the trial court was without authority to suspend the defendant’s sentences and to place her on probation. We reverse the ruling of the trial co"rt and remand this case for execution of the sentences.

TATUM, J., concurs. CORNELIUS, J., dissents.

. T.C.A. § 40-3105 (Supp.1980) provides:

In all cases where any person shall be convicted of a felony, and the jury trying the case shall be of the opinion that the offense merits a punishment of five (5) years or less, the court, in its discretion, may order said person confined in the county workhouse for the term of such sentence, provided that the trial judge shall have the power to order the removal of the prisoner from the county workhouse to the penitentiary whenever in his opinion they are being treated in a brutal or inhuman manner, or when it shall appear to him that the physical condition of the prisoner is such that working on the roads is deleterious to his health.
Whenever any prisoner is confined to a county workhouse under provisions of this section, the state shall pay to the county a fee, the amount of which is fixed in accordance with provisions of § 8-26-105.