IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE DECEMBER SESSION, 1997 FILED March 23, 1998 Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9706-CR-00232 Appellee ) ) UNION COUNTY vs. ) ) Hon. LEE ASBURY, Judge ROBERT H. McCURDY, ) ) (Aggravated Sexual Battery) Appellant )

SEPARATE CONCURRING OPINION

I concur in the results reached by the majority. For those reasons expressed in State v. Cooper, No. 01C01-9604-CC-00150 (Tenn. Crim. App. at Nashville, Nov.

17, 1997) (Hayes, J., concurring), I write separately to note my agreement with the trial judge that the so-called truth in sentencing provisions, as codified in Tenn. Code Ann. § 40-35-201, are unconstitutional. Accordingly, I find no error in the trial court's rejection of the requested instructions.

____________________________________ DAVID G. HAYES, Judge