IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED NOVEMB ER SESSION, 1998 April 8, 1999 Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9802-CC-00064 ) Appe llant, ) ) ) WILLIAMSON COUNTY VS. ) ) HON . DON ALD P . HARR IS ANDRE L. HENDERSON, ) JUDGE ) Appellee. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)

FOR THE APPELLANT: FOR THE APPELLEE: LARRY D. DROLSUM JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter C. Main Street P. O. Box 68 DARYL J. BRAND Franklin, TN 37065-0068 Senior Counsel KIM R. HELPER Legal Assistant Fifth Avenu e North Nashville, TN 37243-0493 JOE D. BAUGH, JR. District Attorney General DEREK SMITH Assistant District Attorney P. O. Box 937 Franklin, TN 37065-0937

OPINION FILED ________________________ REVERSED AND REMANDED JERRY L. SMITH, JUDGE OPINION

On November 24, 199 7, Appe llee And re L. Hen derson pled guilty to one count of aggravated robbery. Following a two-day sentencing hearing on January and 20, 1998, the trial court se ntenced A ppellee as a R ange I stand ard offender to eight years in the Community Corrections Program. On January 22, 1998, the State filed a motion to reconsider sentence. After a hearing, the trial court denied the motion. The State challenges the denial of its motion, raising the following issue: whe ther a defendant who is convicted of aggravated robbery can be sentenced to a term in the Com munity Corrections P rogram. After a review of th e record , we revers e the judg ment o f the trial court.

FACTS

On June 11, 1997, Appellee entered the Hampton In n and Suites in Franklin, Tennessee, wearing a stocking over his head and c once aling o ne of h is arms with a towel and th e other arm with a sock. Appellee then grabbed one of the employee s by the arm and pulled her over by the cash register. The employee then opened the cash register because she believed that Appellee had a gun and would shoot her. After the employee opened the cash register, Appellant took money from the drawer and fled the sc ene in a v ehicle. Appellee was ap prehen ded sh ortly therea fter.

-2- ANALY SIS

The State co ntends that the trial co urt erred when it sentenced Appellee to Com munity C orrection s. Specifically, the State contends that Appellee was statuto rily ineligible to participate in the Co mm unity Cor rections P rogram . We agree.

Eligibility for the Com munity Corrections Program is governed by section 40-36-1 06 whic h states, in relevant p art: (a) An offender who meets all of the following minimum criteria shall be considered eligible for punishment in the community under the provisions of this chapter: .... (2) Persons who are convicted of property-related, or drug/alcohol-related felony offenses or other felony offenses not involving crimes against the person as provid ed in title 39, chapter 13, parts 1-5; (3) Persons who are convicted of nonviolent felony offenses; Tenn. Code Ann. § 40-36-106(a) (Supp. 1998). There is no question that because Appellee pled guilty to the violent felony offense o f aggravated ro bbery under Tennessee Code Anno tated s ection 39-13 -402, A ppelle e is not eligible for the Com munity Co rrections Progra m unde r 40-36-106 (a).

Howeve r, an offender who does not meet the minimum criteria under 40-36-106(a) may still be eligible for Comm unity Corrections u nder 40-36 -106(c), which states: (c) Felony offende rs not oth erwise eligible under subsection (a), and who would be us ually co nside red un fit for proba tion du e to his tories o f chron ic alcoh ol, drug abuse, or mental health problems, but whose special needs are treatable and could be served best in the co mm unity ra ther tha n in a correctional institution, may be considered eligible for punishment in the comm unity under the p rovisions of this chap ter.

-3- Tenn. Code Ann. § 40-36-106(c) (Supp. 1998 ). This Cour t has p reviou sly stated that in order to be eligible for the Community Corrections Program under 40-36- 106(c), a defendant must first b e statutorily e ligible for prob ation. State v. Grigsby, 957 S.W .2d 541 , 546 (T enn. C rim. App . 1997); State v. Boston, 938 S.W.2d 435, 43 8 (Ten n. Crim. A pp. 199 6); State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App . 1989). 1 Tenn essee Code Annota ted section 40-35-303(a) expre ssly states that “a defendant shall not be eligible for probation under the provisions of this cha pter if the de fendan t is convicted of a violation of . . . § 39- 13-402 . . . .” Tenn. Code Ann. § 40-35-303(a) (1997). Thus, there is no question that Appellee was not elig ible for the Community Corrections Program under 40-3 6-106(c). 2

In short, Appellee w as clearly ineligible for the Co mmu nity Corrections Program under b oth 40-36-106(a) and (c). Accordingly, we reverse the judgment of the trial court and we reman d this cas e for furthe r procee dings co nsistent w ith this opinion.

____________________________________ JERRY L. SMITH, JUDGE

The ration ale fo r this c onc lusion is tha t the “w aiver of fitn ess for pr oba tion [c onta ined in 40-36-106(c)] is meaningless, unless the normal statutory criteria for probation apply to subsection (c) participants.” Staten, 787 S.W.2d at 936.

Although Appellee concedes that he is not eligible for the Community Corrections Program under exis ting s tatuto ry and cas e law , App ellee c laim s tha t exc luding him from the p rogr am violate s his constitutional right to due process and contravenes the intent the legislature had when it enacted the Com mu nity Co rrec tions Act. H owe ver, A ppe llee ha s faile d to c ite to th e rec ord o r to an y auth ority in support of this conclusory allegation, and we are unpersuaded that either the federal or state constitutions prohibit the legislature from setting the eligibility standards for the community corrections program in the manner now provided.

-4- CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOHN H. PEAY, JUDGE

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