The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 2000 SESSION
FILED
February 10, 2000
STATE OF TENNESSEE, ) Cecil Crowson, Jr.
) Appellate Court Clerk
NO. W1998-00029-CCA-R3-CD
Appellee, )
) MADISON COUNTY
VS. )
) HON. ROY B. MORGAN, JR.,
BILLY WAYNE MOORE, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE M. GOOGE PAUL G. SUMMERS
District Public Defender Attorney General and Reporter
STEPHEN P. SPRACHER R. STEPHEN JOBE
Assistant Public Defender Assistant Attorney General
227 W. Baltimore St. Cordell Hull Building, 2nd Floor
Jackson, TN 38301-6137 425 Fifth Avenue North
(At Hearing) Nashville, TN 37243-0493
JOHN E. HERBISON JAMES G. WOODALL
2016 Eighth Avenue South District Attorney General
Nashville, TN 37204-2202
(On Appeal) SHAUN A. BROWN
Assistant District Attorney General
225 Martin Luther King Dr.
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:
AFFIRMED IN PART; REVERSED IN PART; REMANDED
JOE G. RILEY, JUDGE
OPINION
This is an appeal from a revocation of probation. On March 14, 1997,
defendant pled guilty to “theft under $1,000,”1 two counts of aggravated assault,
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The judgment for case number 95-817 lists the charged offense as theft over $1,000, a
Class D felony. The convicted offense is listed as “theft under $1,000,” a “Class E felony.”
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possession of a weapon in a penal institution, and robbery. On the same day,
defendant was sentenced as a Range II multiple offender to an effective sentence
of ten years in community corrections.2 Subsequently, defendant’s community
corrections sentences were transferred to supervised probation. On November 10,
1998, an order was entered revoking defendant's probation. In this appeal as of
right, defendant does not challenge the validity of the revocation. The only issue
before the court is the validity of the original sentences. Upon our review of the
record before us, we AFFIRM in part; REVERSE in part; and REMAND for further
proceedings.
I. PROCEDURAL HISTORY
On March 14, 1997, defendant pled guilty to two counts of aggravated
assault, robbery, “theft under $1,000" and possession of a weapon in a penal
institution. The same day he received community corrections sentences of eight
years for one count of aggravated assault, ten years for another count of
aggravated assault, eight years for robbery, six years for “theft under $1,000" and
eight years for possession of a weapon in a penal institution. All sentences were
to be served concurrently. On August 15, 1997, the trial court transferred
defendant’s community corrections sentences to supervised probation. Thereafter,
defendant’s probation was revoked, and defendant was ordered to serve his original
sentences. Although defendant does not contest the basis for the revocation, he
does contend his original sentences were illegal and must be set aside.
II. DEFENDANT’S CONTENTIONS
Defendant argues that the underlying convictions, upon which his probation
However, the defendant was sentenced as a Range II multiple offender, and the six year
sentence he received exceeds the Range II penalty allowed for a Class E felony, but falls
within that range allowed for a Class D felony. See Tenn. Code Ann. §§ 39-14-105(2),(3)
and 40-35-112(b)(4)(5). Therefore, it is uncertain for which offense defendant was convicted
and sentenced.
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Although the indictments and judgments are in the record, the guilty plea forms and the
transcript of the guilty plea hearing are not in the record. Therefore, we cannot conclusively
determine whether the plea was entered pursuant to an agreement. However, it appears from
the record that sentencing took place on the same day the guilty plea was entered, which
typically indicates the plea was entered pursuant to an agreement.
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revocation was based, are facially invalid. Defendant challenges his six year
sentence for “theft under $1,000,” claiming he was sentenced outside the
appropriate range. Defendant argues that he was convicted of theft of property over
$500 but under $1000, a Class E felony, but was sentenced within the Range II
punishment appropriate for theft of property over $1,000, a Class D felony. In
addition, defendant challenges his eight-year community corrections sentence for
possession of a weapon in a penal institution; his eight-year community corrections
sentence for aggravated assault; his ten-year community corrections sentence for
aggravated assault; and his eight-year community corrections sentence for robbery.
He claims these sentences are prohibited by Tenn. Code Ann. § 40-36-106(a). If
these sentences are “illegal,” they are a nullity and subject to correction at any time.
State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978).
Tenn. Code Ann. § 40-36-106(a) outlines the eligibility requirements for a
community corrections sentence. Subsection (2) excludes defendants convicted of
an offense committed against the person; subsection (3) requires the felony offense
to be non-violent; and subsection (4) prohibits community corrections for defendants
convicted of a felony offense, where the use or possession of a deadly weapon is
an element. Tenn. Code Ann. § 40-36-106(a).
Defendant argues that both aggravated assault and robbery are violent
offenses against the person. Defendant further argues that aggravated assault and
possession of a weapon in a penal institution are offenses which include use or
possession of a deadly weapon as an element. Therefore, he concludes
requirements (2), (3), and (4) disqualify him as a candidate for community
corrections, and his sentences for these four offenses are void.
III. ANALYSIS
A. Theft under $1,000
As to “theft under $1,000," it is unclear whether the conviction was for the
Class E felony of theft over $500 but less than $1,000 or the Class D felony of theft
over $1,000 but less than $10,000 as charged in the indictment. If the Class E
felony was intended, the six-year sentence exceeded the allowable Range II
punishment, but is not an illegal sentence. See generally Hicks v. State, 945
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S.W.2d 706 (Tenn. 1997). If the Class D felony was intended, there was simply a
clerical error in listing the offense as “theft under $1,000" rather than “theft over
$1,000.” Upon remand, the trial court shall modify this judgment to reflect the
intention of the parties.
B. Illegal Sentences
The remaining four convictions present a more complex issue. Convictions
for aggravated assault, possession of a weapon in a penal institution and robbery
would ordinarily be ineligible for community corrections. See Tenn. Code Ann. § 40-
36-106(a). However, such offenses are eligible for community corrections under the
“special needs” provision of Tenn. Code Ann. § 40-36-106(c), provided the
defendant is statutorily eligible for probation. See State v.Grigsby, 957 S.W.2d 541,
546 (Tenn. Crim. App. 1997). Thus, the eight-year community corrections
sentences for aggravated assault, possession of a weapon in a penal institution and
robbery are not illegal on their face. However, the ten-year community corrections
sentence for aggravated assault is clearly an illegal sentence since a ten-year
sentence is ineligible for probation. See Tenn. Code Ann. § 40-35-303(a). This
illegal sentence is a nullity and subject to correction at this time, even though the
judgment long ago became final. See Burkhart, 566 S.W.2d at 873. Thus, the trial
court had no authority to revoke probation on this offense and require service of the
original sentence.
IV. CONCLUSION
Case number 95-817 listing the conviction as “theft under $1,000" is
REMANDED for correction of the judgment to reflect the original intent of the
parties. The judgment should reflect either “theft over $1,000,” a Class D felony or
“theft over $500,” a Class E felony. The trial court shall also enter an order showing
that probation for the theft offense is revoked.
The judgment of conviction for the ten-year sentence of aggravated assault
in case number 96-479 is set aside. Revocation of probation in case number 96-
479 is likewise set aside, and the case is REMANDED to the trial court. If the guilty
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plea and sentence were pursuant to a plea agreement, defendant shall have the
opportunity to withdraw his plea in case number 96-479. See Burkhart, 566 S.W.2d
at 873. If the plea was not entered pursuant to a plea agreement, the trial court shall
simply re-sentence the defendant in case number 96-479.
The judgments of convictions and eight-year sentences for aggravated
assault (case number 96-344, Count 1), possession of a weapon in a penal
institution (case number 96-344, Count 2), and robbery (case number 96-345) are
not illegal sentences. These sentences were imposed in 1997. We see no reason
to remand for any further proceedings with regard to these three convictions. The
revocation of probation on these three eight-year sentences is AFFIRMED.
____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOHN EVERETT WILLIAMS, JUDGE
____________________________
ALAN E. GLENN, JUDGE
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