IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MAY SESSION, 1997 FILED August 15, 1997 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9603-CR-00101 Appellant ) ) DAVIDSON COUNTY vs. ) ) Hon. THOMAS H. SHRIVER, Judge ANAND FRANKLIN, ) ) (Aggravated Sexual Battery) ) Appellee ) STATE APPEAL

For the Appellee: For the Appellant: TERRY J. CANADY CHARLES W. BURSON Printer's Alley Bldg, Suite 400 Attorney General and Reporter Nashville, TN 37201 KATHY MORANTE Assistant Attorney General Criminal Justice Division James Robertson Parkway Nashville, TN 37243-0493

VICTOR S. (TORRY) JOHNSON III District Attorney General BILL REED Asst. District Attorney General Washington Square Building 2nd Avenue, N Nashville, TN 37201

OPINION FILED: REVERSED AND REMANDED

David G. Hayes Judge OPINION

The State of Tennessee appeals the sentencing decision of the Davidson County Criminal Court permitting the defendant, Anand Franklin, to serve his sentence in the local community corrections program. On appeal, the State challenges the eligibility of the defendant for sentencing under the Community Corrections Act.1

After review, we reverse the judgment of the trial court and remand.

The defendant, a resident of India, was initially charged with three counts of aggravated rape and one count of aggravated sexual battery upon minor children. At a jury trial, the defendant was found guilty of aggravated sexual battery. The proof at the sentencing hearing established that the defendant was granted entry into the United States for a ninety day period to attend a “seminar.”

The record suggests that this was in connection with his work as a missionary for the Seventh Day Adventist Church. On the date the offense was committed, the ninety day period had expired, thus, the defendant was in this country illegally.

At the sentencing hearing, the defendant requested that he be permitted to return to India. The trial court was also informed that the victim’s mother did not oppose the defendant’s return to his native country. The State opposed any form of release, arguing instead that the defendant’s place of confinement should be the Department of Correction. At the conclusion of the sentencing hearing, the trial court imposed an eight year sentence upon the defendant with placement in the local community corrections program. The order further provided for the defendant’s release from jail on March 15, and, as “a condition of the Community Corrections, that he go to India on March 19th.” It is from this

As a subissue, the Sta te c ontes ts th e trial court’s autho rity to im pose banishm ent to In dia as a form of pu nishm ent. In view of our holding that the de fendan t is ineligible fo r com m unity corrections sentencing, we find it unnecessary to reach this question.

Order that the State now appeals.

Eligibility for sentencing under the Tennessee Community Corrections Act of 1985 is governed by Tenn. Code Ann. § 40-36-106(a) and (c) (1990). In this case, the defendant was convicted of aggravated sexual battery, which is a felony offense “involving [a] crime[ ] against the person as provided in Title 39, . . . Chapter 13, parts 1-5; thus, he is ineligible for community corrections sentencing under subsection (a). Tenn. Code Ann. § 40-36-106(a)(2). In order to be eligible for community corrections sentencing under subsection (c), the offender must be statutorily eligible for probation. State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989); State v. Crowe, No. 01C01-9503-CC-0064 (Tenn. Crim. App. at Nashville, 1995); State v. Blackburn, No. 02C01-9111-CC- 00253 (Tenn. Crim. App. at Jackson, 1993); State v. Wilson, No. 03C01-9209- CR-00305, (Tenn. Crim. App. at Knoxville, 1993).

Tenn. Code Ann. § 40-35-303(a) provides that “[a] defendant shall be eligible for probation . . . if the sentence actually imposed upon such defendant is eight (8) years or less; provided, that a defendant shall not be eligible for probation under the provisions of this chapter if he is convicted of a violation of . . . § 39-13-504.”

Because the defendant was convicted of Tenn. Code Ann. § 39-13-504, aggravated sexual battery, he is statutorily ineligible for community corrections sentencing under subsection (c). Accordingly, the defendant’s sentence to community corrections is an illegal sentence and must be vacated.

This matter is remanded to the trial court with instructions that the defendant, Anand Franklin, be ordered to serve his sentence of eight years as a Range one offender with the Tennessee Department of Correction.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

______________________________________ PAUL G. SUMMERS, Judge

______________________________________ JERRY L. SMITH, Judge