State v. Jeffrey Lindemeyer ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 18, 1999
JUNE SESSION, 1999 Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 03C01-9808-CR-00284
Appellee, *
* KNOX COUNTY
vs. *
* Hon. Mary Beth Leibowitz, Judge
JEFFREY B. LINDEMEYER, *
* (Selling Drugs in School Zone)
Appellant. *
SEPARATE CONCURRING
I agree that the Drug-Free School Zone Act requires incarceration in the
Department of Correction. This conclusion is based upon a comparison of the plain
language of the Act itself with the provisions of the Tennessee Community
Corrections Act of 1985.
A violation of the Drug-Free School Zone Act requires that the defendant be
punished one classification higher than provided in § 39-17-417(b)-(I) and “shall be
required to serve at least the minimum sentence for such defendant’s appropriate
range of sentence.” See Tenn. Code Ann. § 39-17-432(b) & (c) (emphasis added).
The Act specifically provides that “[a]ny sentence reduction credits . . .shall not
operate to permit or allow the release of such defendant prior to full service of such
minimum sentence,” see Tenn. Code Ann. § 39-17-432 (c) (emphasis added), and
that “the provisions . . .relative to release eligibility status and parole, shall not apply
to or authorize the release of a defendant.” See Tenn. Code Ann. § 39-17-432(d)
(emphasis added). Thus, the Act, by its plain language clearly contemplates an
incarcerative sentence.
“The Community Corrections Act, on the other hand, was established to
provide “front-end community based alternatives to incarceration.” See Tenn. Code
Ann. § 40-36-103(1) (emphasis added); see also Tenn. Code Ann. § 40-36-104(4)
(reduce the number of nonviolent felony offenders committed by participating
counties to correctional institutions and jails by punishing these offenders in
noncustodial options). Thus, although the Community Corrections Act provides for
day for day jail credit for time spent in the community corrections program, see
Tenn. Code Ann. § 40-36-106(3)(B), a sentence involving the community
corrections program is not a sentence of confinement to which release eligibility
dates and good time credits apply. Accordingly, a community corrections sentence
is not a sentence of confinement, but rather a non-incarcerative sentencing
alternative.
Moreover, under the authority of the Community Corrections Act, the trial
court possesses the sole authority to alter, amend or terminate an offender’s
community corrections sentence. See Tenn. Code Ann. § 40-36-106(e)(1)-(5).
However, the Drug-Free Zone Act addresses only the authority of “the governor or
the board of paroles” relative to the release of a defendant. See Tenn. Code Ann.
§ 39-17-432(e) (governor or board of paroles shall not release or cause the release
of a defendant sentenced under this act prior to the service of the entire minimum
sentence). By omission of the trial court’s authority in this subsection, it may
logically be inferred that the legislature did not intend to permit service of the
“mandatory minimum sentence” in a community based sentencing alternative.
For these reasons, I would affirm.
____________________________________
DAVID G. HAYES, Judge
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