¶1dissenting.
¶2T.C.A. § 40-2901 authorizes the trial judge to suspend these two sentences. The combined maximum sentence, as fixed by the law (judgment) of this case, does not exceed ten (10) years, in fact it does not exceed five years.
Prior to 1976, T.C.A. § 40-2901 provided:
“. . .As used in this chapter, the word ‘defendant’ means any person convicted of a misdemeanor or convicted of any felony, the maximum punishment for which does not exceed ten (10) years. . . : ”
¶3By Chapter 532, Public Acts of 1976 [now in supplement to T.C.A. § 40-2901], the Legislature made the following change:
AN ACT to amend Title 40, Chapter 29, Tennessee Code Annotated, relative to the authority of the trial judge to suspend any sentence for an offense, where the sentence fixed by a judge or jury does not exceed ten (10) years confinement in the state penitentiary.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Section 40-2901 is amended by deleting the fourth sentence in its entirety and substituting instead the following:
“As used in this chapter, the word ‘defendant’ means any person convicted of a misdemeanor or convicted of any felony, the maximum sentence for which has been fixed by a jury or by a judge as confinement in the state penitentiary for a period of ten (10) years or less, except in cases in which the defendant has been convicted of murder in the first degree, murder in the second degree, rape, unlawful carnal knowledge of a female under the age of twelve (12) years, robbery accomplished by the use of a deadly weapon, the second or subsequent violation of Section 52-1432(a)(l)(A) or (B), and in all other cases for which the minimum sentence provided by law is ten (10) years or more; and except in those cases in which the defendant has been convicted of two or more felonies for which the maximum sentence provided by law exceeds ten (10) years confinement in the state penitentiary.”
¶4Clearly it was the intent of the Legislature to change a judicial interpretation of “maximum punishment (fixed by statute)” to “maximum sentence fixed by the judge and/or jury.”
¶5*137The majority opinion has interpreted the provision of the amendment relating to “convictions of two or more felonies for which the maximum sentence provided by law exceeds ten (10) years .. . . ” as returning to the pre-amendment judicial construction of maximum possible punishment.
¶6It is a strained construction to hold that the amendment changed the statute from “maximum punishment” to “maximum sentence” with two different meanings for the use of “maximum sentence.” What the majority’s opinion has effectively done is adhere to the former holdings insofar as two or more offenses are concerned. Had it been the legislative intent to change only first offenses they would have reverted to “two (2) or more felonies for which the maximum punishment provided by law exceeds ten (10) years...” This was not done. In both the first and subsequent convictions, the Legislature expressly chose to speak of “sentence”.
¶7A sentence is “the judgment formally pronounced by the court or judge upon the defendant after his conviction in a criminal prosecution, awarding the punishment to be
¶8inflicted.” Black’s Law Dictionary, Revised 4th Edition. Punishment may be prescribed by the Legislature but a court imposes the sentence.
¶9The Attorney General says that this Court’s unreported opinion of State v. Larry Darnett Langford, Shelby County No. 56 (Tenn.Cr.App. Jackson, February 28, 1980) is “an almost identical case.” There is a very material difference. Langford had three sentences of five years each which exceeded the ten (10) year limitation. Ms. McCammon’s two sentences do not exceed the ten year limitation.
¶10The trial judge had the “powers” to suspend these sentences under the amended T.C.A. § 40-2901. He chose to do so and the record reflects he reached a correct result. Therefore, I would affirm the judgment below.