IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs March 14, 2001 STATE OF TENNESSEE v. LINDA GAIL PHILPOTT Direct Appeal from the Circuit Court for Bedford County NO . 14623

NO . M2000-01999-CCA-R3-CD - FILED MAY 2, 2001

James Curwood Witt, Jr., J., concurring and dissenting.

I concur that a sentencing alternative of split confinement should be utilized in the present case; however, I respectfully disagree that confinement for 35 days is appropriate. A consecutive sentence of 20 days confinement for each count would be more in line with the sentence approved by this court in the remarkably similar case of State v. Cynthia D. Stacey, No. 03C01-9803-CC- 00091 (Tenn. Crim. App., Knoxville, May 24, 1999) (approving 180 days of confinement followed by two years of community corrections, for defendant who, as a home health care worker, stole money from an elderly couple in her care). The cases are very similar, and in light of Cynthia D.

Stacey, the present case, on its own facts, suggests a more punitive, deterrent sentence than 35 days in confinement. Thus, I would extend the confinement portion of the sentence to an aggregate of 140 days.

___________________________________ James Curwood Witt, Jr., Judge