             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     Assigned on Briefs May 16, 2001

                       STATE OF TENNESSEE v. DAVID D. HARRIS

                     Direct Appeal from the Criminal Court for Davidson County
                                No. 98-A-814    Seth Norman, Judge



                       No. M1999-02469-CCA-R3-CD - Filed September 19, 2001


The State appeals the judgment of the Davidson County Criminal Court suspending the appellee’s
sentences for aggravated robbery and granting the appellee probation for a term of twenty-four years.
Following a review of the record and the State’s brief,1 we reverse the judgment of the trial court and
remand this case for proceedings consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Paul G. Summers, Attorney General and Reporter; Russell S. Baldwin, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Charles A. Carpenter, Assistant District
Attorney General, for the appellant, State of Tennessee.

Lionel R. Barrett, Jr., and Jefre S. Goldtrap, Nashville, Tennessee, for the appellee, David D. Harris.

                                                        OPINION

                                                    I.
                On June 16, 1999, the appellee, David D. Harris, pled guilty in the Davidson County
Criminal Court to seven counts of aggravated robbery. The pleas arose from the appellee’s
participation in a series of robberies at various business establishments in the Nashville metropolitan
area in October and November of 1997. According to the appellee, he used an unloaded gun during
the robberies to frighten his victims. Additionally, he bound his victims with “flex-cuffs” and, on
several occasions, threatened to locate and harm the victims should they report the robberies to the
police. Both the appellee and his co-defendant, Robert W. Proudfoot, participated in the robberies


         1
          On April 4, 20 01, this cour t denied the a ppellee’s m otion to late-file his b rief following the e xpiration o f a
deadline set by the court pursuant to the appellee’s previous requ est for an extensio n of time in which to file his brief.
for the purpose of accumulating sufficient funds to create and operate an adult entertainment Internet
site.

                The appellee’s guilty pleas were unaccompanied by any agreement concerning
sentencing. Accordingly, the trial court conducted a sentencing hearing on October 27, 1999. At
the conclusion of the hearing, the trial court imposed minimum sentences of eight years incarceration
in the Tennessee Department of Correction for each count of aggravated robbery. The trial court
further ordered that four of the appellee’s eight-year sentences be served concurrently with one
another and concurrently with two, consecutive ten-year sentences imposed by the Williamson
County Circuit Court on October 14, 1998, pursuant to the appellee’s convictions of aggravated
robbery in that county. As to the remaining three Davidson County sentences, the trial court ordered
that they be served consecutively to one another and consecutively to the Williamson County
sentences. The trial court, however, suspended the Davidson County sentences, effectively placing
the appellee on probation for twenty-four years following the appellee’s service of his Williamson
County sentences. The State now appeals the trial court’s grant of probation.

                                                II.
                Appellate review of the manner of service of a sentence is de novo with a
presumption of correctness. Tenn. Code. Ann. § 40-35-402(d) (1997); State v. Ashby, 823 S.W.2d
166, 168 (Tenn. 1991). The presumption of correctness is conditioned upon an affirmative showing
in the record that the trial court considered sentencing principles and all relevant facts and
circumstances. Ashby, 823 S.W.2d at 169. “If the trial court applies inappropriate factors or
otherwise fails to follow the 1989 Sentencing [Reform] Act, the presumption of correctness falls.”
State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992); see also State v. Price, 46 S.W.3d
785, 819 (Tenn. Crim. App. 2000), perm. to appeal denied, (Tenn. 2001). In this case, the trial court
failed to comply with Tenn. Code Ann. § 40-35-303(a) (1997), which prohibits probationary
sentences in aggravated robbery cases. Accordingly, not only does the presumption of correctness
fall, but we must also reverse the judgment of the trial court and remand this case for proceedings
consistent with this opinion.

                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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