         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs May 7, 2002

                 STATE OF TENNESSEE v. GEORGE W. LUCAS

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 01-02992   James C. Beasley, Jr., Judge



                     No. W2001-02600-CCA-R3-CD - Filed July 12, 2002


The defendant pled guilty to the offense of carjacking and was sentenced to 7.2 years in the
Tennessee Department of Correction. In this appeal he claims that he was improperly denied
probation because the trial judge mistakenly held that individuals convicted of carjacking were
statutorily ineligible for probation. We hold that the legislature has allowed individuals convicted
of carjacking and sentenced to eight (8) years or less to remain eligible for probation. Moreover, the
trial judge also erred in determining that the use of a weapon in a carjacking was, standing alone,
sufficient reason to deny the defendant probation. We therefore reverse the judgment of the trial
court and remand for re-sentencing in accordance with this opinion.


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

JERRY SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E. GLENN,
JJ., joined.

Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for appellant, George Lucas.

Paul G. Summers, Attorney General & Reporter, P. Robin Dixon, Jr., Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Goodman, Assistant District Attorney
General for appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       Although there is some dispute as to whether the defendant used a gun to accomplish the
crimes there is no dispute that he and a co-defendant stole a car from an individual named Marcillo
Anderson. The defendant claimed they did so in order to facilitate the repayment of a debt Anderson
owed the defendant. This money had been loaned to Anderson for the purchase of marijuana.
         At the sentencing hearing the defendant claimed that he was not armed during the carjacking
and that he was unaware that his co-defendant had a sawed-off shotgun in his possession. He also
testified that he is a 30-year-old high school graduate who had received certification from a technical
college in the areas of carpentry, plumbing and floor work. The proof also showed that if he received
probation, the defendant had a job waiting on him with Economy Remodeling and Construction.

                                        Trial Court Ruling

       In denying probation the trial court stated the following:

               It defies logic to me. And I fail to see that that was the intent of the
       legislature, that we’re going to increase the punishment, where we’re going to make
       armed robbery of a car probatable, armed robbery of a , you know, of a screw driver,
       you can’t get probation, armed robbery of a car, you can. I don’t believe that was
       their intent.

               I believe they were increasing punishment, specifically addressing stealing a
       car, because it is a problem that the legislature thought needed to be addressed
       specifically. And I do not feel that was their intent that this should be a probatable
       sentence.

               I don’t think that he’s eligible under the law. But even if I’m wrong, under
       the law, I don’t think that he’s eligible for probation. Because I think by using a
       deadly weapon to rob another individual of a car is just a sentence that you should not
       get probation. I don’t think that he’s a proper candidate for probation because of the
       very facts and circumstances of the crime.

               And for those reasons, I’m going to deny the petition.

                                       Probation Eligibility

        Eligibility for probation is generally governed by Tennessee Code Annotated section 40-35-
303(a), which provides:

               A defendant shall be eligible for probation under the provisions of
               this chapter if the sentence actually imposed upon such defendant is
               eight (8) years or less; provided, that a defendant shall not be eligible
               for probation under the provisions of this chapter if the defendant is
               convicted of a violation of § 39-17-417(b) or (i), § 39-13-304, § 39-
               13-402, § 39-15-402 or § 39-13-504. A defendant shall also be
               eligible for probation pursuant § 40-36-106(e)(3).

Tenn. Code Ann. § 40-35-303(a).


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        Thus, criminal defendants who receive sentences of eight (8) years are eligible for probation
consideration unless the crimes for which they are convicted are ones for which the legislature has
removed probation as a possible sentence. For example, it is apparent from the above that violators
of the aggravated robbery statute, Tennessee Code Annotated section 39-13-402, are not eligible for
probation regardless of the actual sentence imposed. However, it is equally apparent that violators
of the carjacking statute, Tennessee Code Annotated section 39-13-404, are not excluded from
probation consideration if they receive sentences of eight (8) years or less. When one compares the
aggravated robbery statute to the carjacking statute, one can appreciate the trial judge’s conclusion
that the legislature’s allowing carjackers probation eligibility “defies logic.”

         “Aggravated robbery” is defined as:
               (a) . . . robbery1 as defined in § 39-13-401:

                  (1) Accomplished with a deadly weapon or by display of any article
                  used or fashioned to lead the victim to reasonably believe it to be a
                  deadly weapon; or
                  (2) Where the victim suffers serious bodily injury.
                  (b) Aggravated robbery is a Class B felony.

Tenn. Code Ann. § 39-13-402.

         “Carjacking” is defined as:

                  (a) . . . the intentional or knowing taking of a motor vehicle from the
                  possession of another by use of:

                  (1) A deadly weapon; or
                  (2) Force or intimidation.
                  (b) Carjacking is a Class B felony.

Tenn. Code Ann. § 39-13-404.

        It thus appears that however illogical it may be, the general assembly has mandated that an
individual convicted of aggravated robbery for stealing one dollar at gun point is not eligible for
probation regardless of the sentence actually imposed, while an individual convicted of stealing a
motor vehicle at gun point is eligible for probation if that individual receives an actual sentence of
eight (8) years or less. Where a statute is plain and unambiguous on its face the legislative intent
must be derived from the natural and ordinary language used. Jordan v. Baptist Three Rivers Hosp.,
984 S.W.2d 593 (Tenn. 1999); Mandela v. Campbell, 978 S.W.2d 531 (Tenn. 1998). Here, the


         1
          (a) Robbery is the intentional or knowing theft of property from the person of another by violence or putting
the person in fear. Tenn. Cod e Ann . § 39-13-40 1(a).
         (b) Robbery is a Class C felony. Tenn. Code Ann. § 39-13-401.

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legislature in clear and unambiguous terms expressed its intent that certain criminal offenders be
excluded from probation consideration; carjackers who receive sentences of eight (8) years or less
are not among those excluded.

        Therefore, the trial judge erred in concluding that the defendant in this case was not eligible
for probation.

                                        Probation Suitability

        The State in the instant case makes no argument that the trial judge was correct in his
determination that carjackers are excluded from probation eligibility. Instead, the State argues
simply that the facts and circumstances of the instant case warrant the decision to deny probation.
Here the facts and circumstances relied upon by the trial court were that the defendant used a weapon
to accomplish the carjacking. However, where the legislature has provided that violent offenders
of certain statutes are eligible for probation, the fact that the offense was committed as defined is not
a sufficient reason to deny probation. State v. Housewright, 982 S.W.2d 354, 358 (Tenn. Crim. App.
1997). Rather, to deny probation based on the facts and circumstances of the crimes as committed,
those facts and circumstances must be especially violent, horrifying, shocking, reprehensible,
offensive, or otherwise of an excessive or exaggerated degree, and the nature of the offense must
outweigh all factors favoring probation. Id.; State v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim.
App. 1995).

      The State has not pointed to any factor that renders the carjacking in this case anymore
exaggerated, horrifying or reprehensible than any other carjacking.

                                              Conclusion

       In light of the fact that the trial court erroneously believed the defendant to be ineligible for
probation consideration, we reverse the instant case and remand for reconsideration of the petition
for probation in accordance with the principles set forth in this opinion.




                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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