           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                         APRIL 1999 SESSION
                                                         FILED
                                                         July 16, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
STATE OF TENNESSEE,        )
                           )     C.C.A. No. 02C01-9808-CC-00255
     Appellee,             )
                           )     Fayette County
v.                         )
                           )     Honorable Jon Kerry Blackwood, Judge
LAUNDRA M. HULBERT,        )
                           )     (Denial of Probation)
     Appellant.            )




FOR THE APPELLANT:               FOR THE APPELLEE:

ANDREW S. JOHNSTON               PAUL G. SUMMERS
3074 East Street                 Attorney General & Reporter
Memphis, TN 38128
                                 PATRICIA C. KUSSMANN
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 ELIZABETH T. RICE
                                 District Attorney General
                                 302 Market Street
                                 Somerville, TN 38068




OPINION FILED: ___________________________________________


AFFIRMED PURSUANT TO RULE 20


L. T. LAFFERTY, SENIOR JUDGE
                                     OPINION



       The defendant, Laundra M. Hulbert, appeals as of right from a denial of probation

by the Fayette County Circuit Court following his convictions for two counts of aggravated

robbery. At the conclusion of a sentencing hearing, the trial court imposed concurrent

sentences of eight years for each count as a Range I, standard offender, in the Department

of Correction. The defendant presents one appellate issue: whether the trial court erred

in failing to sentence the defendant to probation where the defendant was eligible and

suitable for probation.



       After a review of the entire record, briefs of the parties, and applicable law, we affirm

the trial court’s judgment.



                                FACTUAL BACKGROUND



       The Fayette County grand jury indicted the defendant and four others for the

aggravated robbery of Thomas and Lou Scott on November 5, 1997, for taking a money

box containing approximately $1,000, checks, and food stamps, two watches, a wallet, and

a cellular phone. This offense was accomplished with a deadly weapon, to wit, two pistols.



       On July 14, 1998, the defendant entered two pleas of guilty to aggravated robbery

as charged in the two-count indictment. The defendant requested a sentencing hearing

for the trial court to determine the length of the sentence and to consider full probation.



       At the sentencing hearing on August 20, 1998, Thomas Scott testified that he and

his wife, Lou Scott, were watching TV:

              [W]hen two men ran into our room; came into our house and
              came into the den where we were sitting and pointed guns at
              us; asking us where was the money at; using a little profanity.
              And one of the men went over and opened our front door of
              the den and kicked the glass out of the door, trying to get the
              whole door open; still coming back and asking, “Where’s the
              money; where’s the money; where’s the money?”


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                And we finally -- We heard others going through the back part
                of the house. We finally told them where the money box was
                that I brought from the store. After they’d gone through the
                house with other people, the others found the box and they
                left. They didn’t harm us, but they left out the back door, and
                they’d cut our telephone wire and that made it a little difficult to
                call anyone.


       At the time of sentencing, the defendant was 20 years old and was employed as a

laborer at Hart Manufacturing Company in Collierville, Tennessee. On the night of the

robbery, the defendant was with Frankie Driver, who is his cousin, Corey Albright, Shawn

Alston, and Demius “Dinky” Hullom. Alston told them where they could make a “stang

[sting]”. Hullom drove them to the Scotts’ residence. The defendant knew Alston had a

gun. The defendant saw Alston and Albright go to the back of the house, while Driver

stood at the side of the house, and the defendant stood in some bushes. The defendant

testified he did not know exactly what they were going to do. The others ran back to the

car, and the defendant learned that there was another gun. They drove to Driver’s house,

and the defendant received about $225. The defendant denied that he had a gun and

gave a written statement to law enforcement officers of his account.



       The record reveals that in his statement, the co-defendant, Corey Albright, placed

the defendant in a more active role in the robbery of the Scotts.



       At the conclusion of the hearing, the trial court imposed concurrent sentences of

eight years in the Department of Correction and denied probation, because of the

“seriousness of the offense, deterrence, and that it would depreciate the seriousness of

this matter.”



                              SENTENCING CONSIDERATIONS



       The defendant contends that he is eligible for probation under the provisions of

Tenn. Code Ann. § 40-35-303(a), which states that “[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.” That is a true statement; however, the continuing

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language of the statute states, “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 . . . § 39-13-402. . . .”



       Tennessee Code Annotated § 39-13-402(a) states:

               Aggravated robbery is robbery 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.



       In Terry McMahan v. State, No. 03C01-9410-CR-00379, 1995 WL 328222 (Tenn.

Crim. App., Knoxville, June 2, 1995), per. app. denied concurring in results only (Tenn.

1995), this Court affirmed the trial court in denying the defendant placement in a

community corrections program for the offense of aggravated robbery, due to the

defendant’s extensive drug abuse. We have held that for persons to be eligible for

community corrections programs a person must first be statutorily eligible for probation.

Probation eligibility is governed by Tenn. Code Ann. § 40-35-303. Defendants convicted

of aggravated robbery, under Tenn. Code Ann. § 39-13-402, are not eligible for probation.



       Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee,

we hold the defendant is not eligible for consideration of probation, and the trial court’s

judgment in denying probation is affirmed.




                                            ________________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE




CONCUR:




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___________________________________
JOSEPH M. TIPTON, JUDGE




___________________________________
DAVID G. HAYES, JUDGE




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