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State v. Holley10/25/2005
here was no issue on appeal." Because the defendant acknowledged having violated the terms of his probation, he may not now complain that the trial court erred by revoking probation. The defendant is not entitled to relief on this issue.
As his second issue, the defendant complains that the trial court erred by denying his motion for a suspended sentence. He asserts that he is a favorable candidate for probation based upon his completion of a Bible program and a drug treatment program. He also contends that he should have been granted a suspended sentence in order to take care of his children and other family members. The state contends that the trial court did not err by denying the motion because it was not timely filed, see Tenn. R. Crim. P. 35(b), and because the defendant was statutorily ineligible for probation, see Tenn. Code Ann. § 40-35-303(a) (2003).
The defendant filed a motion seeking suspension of his sentence two months after he had acknowledged the probation violation and agreed to serve the twelve-year sentence with the Tennessee Department of Correction. He testified at the hearing that he had completed certain programs and that he would be able to obtain employment if the sentence were suspended. The trial court refused to grant the motion, noting that the twelve-year sentence rendered the defendant statutorily ineligible for probation.
Tennessee Code Annotated section 40-35-303 provides that " defendant shall be eligible for probation under the provisions of this chapter if the sentence actually imposed upon such defendant is eight (8) years or less." Tenn. Code Ann. § 40-35-303(a). In this case, the sentence actually imposed was twelve years. In consequence, the defendant was statutorily ineligible for probation granted by the trial court. It was only because the defendant received the benefit of a special provision of the law that he received probation from the Board of Probation and Parole in the first place. See Tenn. Code Ann. § 40- 20-206. The trial court did not err by denying the motion.
Accordingly, the judgment of the trial court is affirmed.
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