         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 14, 2002

               STATE OF TENNESSEE v. KENNETH RAY WHITE

                     Appeal from the Circuit Court for Humphreys County
                         No. CR-9799-A       Robert E. Burch, Judge



                   No. M2002-00125-CCA-R3-CD - Filed September 11, 2002


The Appellant, Kenneth Ray White, appeals from the sentencing decision of the Humphreys County
Circuit Court denying his request for probation. In this appeal, White raises the issue of whether the
trial court abused its discretion by ordering a sentence of incarceration rather than the less restrictive
alternative of community corrections. After review, we find no abuse of discretion. As such, the
trial court’s decision is affirmed.

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE
OGLE , JJ., joined.

Jake Lockert, District Public Defender; Richard D. Taylor, Jr., Assistant Public Defender, Ashland
City, Tennessee, for the Appellant, Kenneth Ray White.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Peter M.
Coughlan, Assistant Attorney General; Dan Mitchum Alsobrooks, District Attorney General; and
Lisa Donegan, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                               OPINION

                                         Factual Background

        On August 15, 2000, the Appellant was convicted of aggravated assault and received a
sentence of three years probation. Immediately following sentencing, the Appellant was transported
to the Dickson County jail to face adjudication on charges pending there.

         The Appellant’s repentant ways were of short duration. On November 1, 2000, a probation
violation warrant was issued based upon the alleged violations of: (1) failure to report to the
probation officer; (2) failure to make payments on restitution and costs; and (3) failure to provide
a DNA sample. At the probation violation hearing held on September 25, 2001, the Appellant
testified and admitted his failure to comply with the terms and conditions of his probation. The
hearing resulted in the revocation of the Appellant’s probation and reinstatement of his original
three-year Department of Correction sentence.1

        On November 13, 2002, the Appellant filed a pro se motion seeking appointment of counsel
for purposes of filing a “Motion For Early Release/Motion For Release on Probation/Motion For
Post-Conviction Relief.” Following appointment of counsel, the Appellant’s motion was heard on
December 27, 2001. At the hearing, the trial court considered the Appellant’s motion as one seeking
early release or reinstatement of probation. The Appellant asserted at the hearing that the trial court
should have sentenced him to a less restrictive punishment than incarceration. This contention was
based upon the fact that he had already been incarcerated for the previous ten months on a separate
probation violation in a separate county, the large number of children he had, the fact he had a
commitment for a job upon release, and he had a stable home environment. The trial court denied
the Appellant’s motion and this appeal followed.

                                                     Analysis

        Before entertaining review of the issue presented, we are constrained to note that the
Appellant and the State both frame and analyze the issue as “an appeal from a finding that Appellant
was in violation of his probation sentence at a hearing held September 25, 2001 . . . .” The Appellant
and the State suggest that the Appellant’s motion of November 13th be treated “as a petition to
reconsider its prior order revoking probation.”

         The trial court’s judgment of September 25, 2001, revoking the Appellant’s probation
became final on October 25, 2001, when no appeal of the judgment was taken. See Tenn. R. App.
P. 4. The Appellant’s motion of November 13, 2001 was filed after the revocation order became
final; therefore, the motion could not relitigate issues which were res judicata. Nonetheless, we find
the trial court properly considered the Appellant’s motion pursuant to Rule 35 of the Tennessee
Rules of Criminal Procedure, which permits correction or reduction of a sentence, if filed within 120
days after the sentence is imposed or probation is revoked. Although at the time the Appellant was
sentenced to the Department of Correction, the trial court retained sentencing jurisdiction as the
Appellant was housed in the local jail awaiting transfer to the Tennessee Department of Correction.
See Tenn. Code Ann. § 40-35-303(e). Additionally, the record reflects that the Appellant’s “Motion
For Release on Probation” was heard within 120 days of the trial court’s order revoking probation.
Appellate review of a Rule 35(b) ruling is governed by an “abuse of discretion” standard. State v.
Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App. 1993).

       Because the Appellant chose not to appeal revocation and reinstatement of his original three-
year sentence, we are required to presume that the trial court’s ruling in favor of incarceration was


         1
         Prior to this hearing in Humphreys County, the Appellant had b een incarcerated in the Hickma n Co unty jail
from February 25, 20 01, to Septemb er 24 , 200 1, on separate charges of pro bation violations.

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correct. Our focus is thus primarily upon proof occurring subsequent to the last sentencing
determination which demonstrates the Appellant’s amenability for probation. The proof in this case
is less than compelling. Essentially, the only proof developed subsequent to the Appellant’s last
sentencing hearing established: (1) that he had served ninety-three additional days for his sentence;
(2) that he may have a job if released upon probation; and (3) following his revocation on September
25th, the Appellant was found in contempt for making “disrespectful and unprovoked comments to
the Court.” Review under an abuse of discretion standard simply means that the evidence need only
show that the trial judge has exercised “conscientious and intelligent judgment in making the
decision rather than acting arbitrarily.” See State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App.
1995) (citing Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm. to appeal denied,
(Tenn. 1981)). Based upon the record, we cannot conclude that the trial court abused its discretion
in denying the Appellant’s motion to modify his three-year Department of Correction sentence.
Accordingly, the judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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