State v. Lowery

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9710-CR-00475
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST SESSION, 1998 October 6, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CR-00475 ) Appellee, ) ) KNOX COUNTY V. ) ) ) HON. RAY L. JENKINS, JUDGE JOHN B. LOWERY, ) ) Appe llant. ) (PROB ATION R EVOC ATION)

FOR THE APPELLANT: FOR THE APPELLEE:

ROG ER HO OBAN JOHN KNOX WALKUP P.O. Box 1483 Attorney General & Reporter Knoxville, TN 37901 CLINT ON J. M ORG AN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

RANDALL E. NICHOLS District Attorn ey Ge neral

ROBERT JOLLEY Assistant District Attorney General City-County Building Knoxville, TN 37902

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION In this case, the Defendant, John B. Lowery, was convicted of

possession of cocaine with intent to sell on September 16, 1993. He was sentenced

to serve eig ht (8) years in the Tennessee Department of Correction, but the

sentence was suspended and he was placed on probation for the length of the

sentence. Subsequen tly, a petition to revoke proba tion was filed, and after a

hearing, the trial court entered an order revoking probation on December 17, 1996.

Defendant was ordered to serve the entire sentence of eight (8) years by

incarceration in the Departm ent of Correction . He was given credit for two (2) days

spent in jail. The Defendant did not appeal from the order revoking probation.

Howeve r, on Ap ril 11, 1997, he timely filed a motion to modify the sentence pursuant

to Rule 35(b) of the Tennessee Rules of Criminal Procedure. This motion was

denied by the trial court on May 15, 1997, and Defendant filed a timely appeal on

June 13, 1997, from the order denying modification of the sentence. We affirm the

judgm ent of the tria l court.

In this ap peal, th e Def enda nt doe s not c hallen ge the revoca tion of h is

probation by the trial court. Inde ed, even though his notice o f appea l purports to

appeal from th e trial co urt’s order revoking probation “on May 15, 1997,” the notice

of appeal was filed more than thirty (30) days after the order was entered revoking

probation. The subsequent filing of a Rule 35(b) motion does not toll the time

limitation for filing a notice of appeal from the original judgment revoking probation.

See State v. Bilbrey, 816 S.W .2d 71, 74 -75 (Te nn. Crim . App. 19 91).

-2- Defe ndan t’s contention in this appeal is that the trial court erred by not

granting him jail credit for the time he spent on probation prior to it being revoked.

The standard of review of this court for appeals from the trial c ourt’s d enial o f a Rule

35(b) motion is whether the trial court abused its discretion in denying the motion.

State v. Irick, 861 S.W .2d 375 , 376 (T enn. C rim. App . 1993), perm. to appeal denied

(Tenn. 1993). Thus, a reversal on appeal is warranted only if the record contains no

substantive evidenc e to supp ort the ruling of the trial court. State v. Harkins, 811

S.W .2d 79, 82 (Tenn . 1991).

This court has previously held that a defendant is not entitled to receive

credit on his sentence for time spent on probation prior to the probation being

revoked. Young v. State, 539 S.W .2d 850 , 854-55 (Tenn . Crim. A pp. 197 6); State

v. Gill Au stin, C.C.A. No. 0 1C01-95 12-CC-0 0431 , slip op. at 4, R obertso n Cou nty

(Tenn . Crim. A pp., Nas hville, Oct. 17 , 1996).

The Defendant, while making some rather nove l argum ents in his

appe al, is not entitled to the relief he seeks. A ccording ly, the judgm ent of the trial

court is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge

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