          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            NOVEMBER 1998 SESSION
                                                        December 21, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk

STATE OF TENNESSEE,               )
                                  ) C.C.A. No. 01C01-9712-CC-00574
      Appellee,                   )
                                  ) Cheatham County
V.                                )
                                  ) Honorable Robert E. Burch, Judge
                                  )
CARLOS DEWAYNE PARKER,            ) (Aggravated Sexual Battery)
                                  )
      Appellant.                  )




FOR THE APPELLANT:                   FOR THE APPELLEE:

Shipp R. Weems                       John Knox Walkup
District Public Defender             Attorney General & Reporter

Steve Stack                          Kim R. Helper
Assistant Public Defender            Assistant Attorney General
P.O. Box 160                         425 Fifth Avenue North
Charlotte, TN 37036                  Nashville, TN 37243-0493

                                     Dan M. Alsobrooks
                                     District Attorney General

                                     James Kirby
                                     Assistant District Attorney General
                                     P.O. Box 580
                                     Ashland City, TN 37015




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                 OPINION
       The appellant, Carlos Dewayne Parker, was indicted by the Cheatham

County Grand Jury for various sexual offenses including rape, rape of a child,

sexual battery, aggravated sexual battery, and incest. He entered negotiated

pleas of nolo contendere to one count each of rape, see T.C.A. § 39-13-503, and

aggravated sexual battery, see T.C.A. § 39-13-504. Pursuant to his plea

agreement, he received concurrent eight-year sentences for each offense. At a

hearing to determine the manner of service of these sentences, the trial court

concluded that the appellant was eligible for community corrections under the

“special needs” provision of T.C.A. § 40-36-106(c). However, after reviewing the

statutory sentencing considerations, see T.C.A. § 40-35-103, and arguments of

counsel, the trial court ordered confinement with the Tennessee Department of

Correction.



       The appellant argues that the trial court abused its discretion in denying a

sentence to community corrections. We find that the appellant is ineligible for

community corrections and affirm the judgment of the trial court.



       To be eligible for consideration of a sentence to community corrections,

an offender must meet the requirements of T.C.A § 40-36-106. Subsection (a)

of that statute lists the general eligibility criteria and disqualifies persons who, like

the appellant, are convicted of “crimes against the person as provided in title 39,

chapter 13, parts 1-5.” T.C.A. § 40-36-106(a)(2).




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       Neither is the appellant eligible under the “special needs” provision of

subsection (c). See T.C.A. § 40-36-106(c). “Before an offender may be

sentenced pursuant to subsection (c), the offender must be found eligible for

probation.” State v. Grigsby, 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997)

(citing State v. Staten, 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989)); see

State v. Boston, 938 S.W.2d 435, 438 (Tenn. Ct. App. 1996). The appellant is

not eligible for probation. See T.C.A. § 40-35-303 (“a defendant shall not be

eligible for probation under the provisions of this chapter if the defendant is

convicted of a violation of . . . § 39-13-504”). Therefore, he is not eligible for

community corrections.



       Because we find that the appellant is ineligible for consideration of a

sentence to community corrections, we need not directly address the appellant’s

argument that the trial court abused its discretion in ordering confinement.



       The judgment of the trial court is affirmed.




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                                     __________________________
                                     PAUL G. SUMMERS, Judge


CONCUR:




__________________________
JOE G. RILEY, Judge




__________________________
L. T. LAFFERTY, Senior Judge




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