           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE

                    STATE OF TENNESSEE v. HARVEY HOLT

                   Direct Appeal from the Circuit Court for Cocke County
                           No. 5432    Ben W. Hooper, II, Judge



                            No. E1999-01552-CCA-R3-CD - Decided
                                         May 2, 2000

The state appeals from the trial court’s order releasing the defendant from confinement for his
second degree murder conviction and resulting twenty-year sentence and ordering the defendant to
serve the remainder of his sentence on probation. We hold that having been convicted of a violent
felony and receiving a twenty-year sentence, the defendant is not eligible for release with probation.
The judgment of trial court is reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

TIPTON, J., delivered the opinion of the court, in which WOODALL , J., and GLENN, J., joined.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; and Al C. Schmutzer, Jr., District Attorney General, for the appellant, State of Tennessee.

Tim S. Moore, Newport, Tennessee, for the appellee, Harvey Holt.

                                             OPINION

        The state appeals as of right from the trial court’s order releasing the defendant from
confinement and granting him supervised probation. The defendant was convicted by a jury in 1992
for second degree murder, a Class A felony. He was sentenced as a Range I, standard offender to
twenty years confinement in the custody of the Department of Correction. The defendant remained
at the Cocke County Jail awaiting transfer to the department. On March 3, 1999, after the Board of
Paroles denied him parole, the defendant filed a motion with the Cocke County Circuit Court for a
reduction in sentence. Following an April 5, 1999, motion hearing, the trial court ordered the
defendant to be released and placed on supervised probation for the remainder of his sentence.

       The state contends that the trial court erred by placing the defendant on supervised probation,
arguing that the trial court lacked the authority to impose such a sentence. We agree. Having been
convicted of second degree murder with a twenty-year sentence, the defendant is not eligible for
probation. See Tenn. Code Ann. § 40-35-303(a) (providing that a defendant shall be eligible for
probation if his or her sentence is eight years or less). Furthermore, despite the defendant’s
contention that he would be eligible for probation pursuant to a community corrections sentence, see
Tenn. Code Ann. § 40-36-106(e)(3), the defendant is not eligible for community corrections because
he is a violent felony offender. See Tenn. Code Ann. § 40-36-106(3) (providing that persons
convicted of violent felonies are ineligible for community corrections sentences). The defendant
argues that he is eligible for community corrections under the “special needs” section. See Tenn.
Code Ann. § 40-36-106(c). However, in order to be eligible for community corrections sentencing
under subsection (c), the defendant must be eligible for probation. See State v. Boston, 938 S.W.2d
435, 438 (Tenn. Crim. App. 1996). Although Tenn. Code Ann. § 40-35-212(d) states that the trial
court “shall retain full jurisdiction over a defendant sentenced to the department during the time the
defendant is being housed in a local jail or workhouse awaiting transfer to the department[,]” the trial
court does not have the authority to impose a sentence for which the defendant is otherwise
ineligible.

        In consideration of the foregoing and the record as a whole, we reverse the order releasing
the defendant and granting him supervised probation.




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