        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                           NOVEMB ER SESSION, 1996           May 30, 1997

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9603-CR-00087
                                )
      Appellee,                 )
                                )
                                )    DAVIDSON COUNTY
VS.                             )
                                )    HON. THOMAS H. SHRIVER
ROBERT ENLO                     )    JUDGE
SOW ELL, J R.,                  )
                                )
      Appe llant.               )    (Denial of Probation)


                ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF DAVIDSON COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

JOH N T. C ONN ERS , III             CHARLES W. BURSON
134 Riverw ood Drive                 Attorney General and Reporter
Franklin, TN 37069
                                     EUGENE J. HONEA
                                     Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493

                                     VICTOR S. JOHNSON
                                     District Attorney General

                                     JON SEABORG
                                     Assistant District Attorney General
                                     Washington Square, Suite 500
                                     222 Se cond A ve. North
                                     Nashville, TN 37201-1649



OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
                                         OPINION

        This is an appeal pursuant to Rule 3 of the Tennessee Rules of Appe llate

Procedure. The issue raised in this appeal is whether the trial judge erred or

abused his discretion in denying the Defendant’s petition to suspend the balance

of his effective six-year sentence without conducting a hearing on the merits of

the petition. We have determined that this appeal should be dismissed.



        On January 1, 1995 and March 6, 1995, pursuant to a plea agreement, the

Defendant entered guilty pleas to three counts of aggravated burglary and one

count of burg lary. His plea agreement was a “packa ge dea l,” in which the State

agreed to dismiss other ch arges a gainst the Defen dant. 1 The plea agreement

provided that two of the Defendant’s three-year sentences would be served

consecutively to produce an effective sentence of six years to be served in the

Davidson County R egional Workhouse. Neither the Defendant’s “petition to enter

plea of guilty” nor the judgment documents reflect any agreement concerning a

suspension of any portion of the sentences. An order was entered stating that

as a p art of the plea a greem ent the Defe ndan t had a greed to drug treatm ent in

a program called “Life Line Drug Treatment program,” and one of the judgment

docum ents listed a s a spec ial condition , “Life Lines .”



        On November 27, 1995, the Defendant filed a petition requesting that the

balance of his sentences be suspended. The petition alleged that the Defendant

1
 As part of the agreem ent, the Defendant’s petition to enter his guilty pleas stated, “all other
presently pending charges against Defendant are to be dismissed.” We cannot determine from
the re cord how ma ny oth er ch arge s we re pe nding , altho ugh we do note that th e De fend ant’s
petition to suspend the balance of his sentence stated that the Defendant admitted that he
committed “a number of burglaries” in 1994.

                                                    -2-
had successfully completed the “Life Line Drug Treatment program,” and further

alleged that the Defendant’s plea agreement “contemplated” that the Defendant

could petition for a suspension of the balan ce of h is effective six-year sentence

upon successful completion of the program. The trial court promptly denied the

petition without a hearing. The Defendant filed a petition to reconsider the denial

and attached a co py of a letter defense counsel had written to the assistant

district attorne y short ly after th e plea s were        entere d con firming    their

“understanding” that if the Defendant successfully completed the Life Line Drug

Treatment program the State would “be willing to recommend probation at the

hearing on his petition for a suspension of the balance of his effective six-year

senten ce.” The trial court promptly denied the petition to re conside r without a

hearing. It is from the orders of the tria l court denying the Defendant’s petition

to suspend the balance of his sentences that the Defendant appeals.



      On appeal, the Defendant argues that the trial court “exceeded its

authority” in denying the petition for a suspended sentence without conductin g

a hearing. In the even t the trial court w as not re quired b y law to con duct a

hearing on the petition , the D efend ant arg ues th at the tria l judge abus ed his

discretion in denying the petition without a hearing.



      This matter was submitted to this court for a decision on November 13,

1996. During the pendency of the appeal, the Defendant was released on parole,

failed to report to his parole officer and, effective August 7, 1996, had been

classified as “abscon ded from p arole.” This Cou rt subs eque ntly ord ered th at this

appeal would be dismissed for mootness unless the Defendant could show cause

why it should not be.

                                          -3-
       Counsel for the Defendant subsequently filed an affidavit stating that the

Defendant’s parole was revoked in December, 1996 and the Defendant was

curren tly serving his sentence in the Department of Corre ction. In his affidavit,

his defense counsel asserted that, even though the issu es raised on a ppeal were

moot insofar as the Defendant is concerned, there was a routin e prac tice in the

Davidson County Criminal Court, Division I, of denying petitions for suspended

sentences without a hearin g and th at these c ases g enerally e vaded a ppellate

review. Counsel asserted that guidance was needed on the issue of whether a

petitioner was entitled to a hearing on a petition for a suspended sentence.



       The doctrine of justiciability prompts courts to stay their hand in cases that

do not involve a genuine and existing controversy requiring the present

adjudication of prese nt rights. McIntyre v. Traughber, 884 S.W.2d 134, 137

(Tenn . Ct. App. 1994). The concept of mootness deals with the circumstances

that render a case no longe r justiciable. Id. A moo t case is on e that has lost its

character as a present, live controversy. A case will generally be considered

moot if it no longer serves as a mean s to provide relief to the preva iling party. Id.

The two most recognized exceptions to the mootness rule include issues of great

public interest and importance to the administration of justice and issues capa ble

of repetition ye t evading review. Id. Whether to take up cases th at fit into one of

the recognized exceptions to the mootness doctrine is discretionary with the

appellate courts. Id.



       In the case sub judice, it is obvious that we cannot provide any meaningful

relief to the D efend ant eve n if we determine that the trial judge erred or abused

his discretion in denyin g the D efend ant’s p etition to susp end th e bala nce o f his

                                          -4-
      sentence. To order the trial court to conduct an evidentiary hearing on the

      Defe ndan t’s petition for a su spen ded s enten ce, in vie w of the Defe ndan t’s

      subsequent conduct and current status, would border on the ridiculous.



               Counsel for the Defendant argues that this Court should decide the issue

      presented as an exception to the mootness rule because the issues are ca pable

      of repetition ye t evade a ppellate re view. We do not believe that our sentencing

      laws mandate that a trial judge condu ct an evidentiary he aring each a nd every

      time a defendant files a petition requesting the court to suspend the balance of

      a senten ce. See Tenn. Code Ann. §§ 40-35-212(c); 40-35-31 4(c). We have

      located no Tennessee case involving the precise issue of whether a petition for

      modification of sentence pursuant to Tennessee Code Annotated section 40-35-

      314(c) may be denied without conducting an evidentiary hearing.2 The sta tute

      itself provides only that the trial judge maintains jurisdiction over those

      defend ants sentenced to the local jail or workhouse, giving him or her the

      authority to modify such sentences, and that applications to reduce or alter the

      manner of service of a sente nce ma y be made at no less than two (2) mon th

      intervals. Contrary to the Defendant’s position, we do not believe the language

      of the statute implies tha t a hearing mu st be conducted for every application.

      Certa inly the trial court may conduct an evid entiary hearin g in appropriate cases,

      but to require a hearing on each and every application could place an

      unreasonable burden on the trial court. Some discretion is warranted.




      2
        W e not e tha t this is sue is dist inct fr om a m otion to red uce sent enc e pur sua nt to R ule 35 (b) of
the   Tennessee Rules of Criminal Procedure. The Advisory Commission comments to Rule 35 make
      it clear that it does not alter the statutory authority of trial courts to modify the sentences of
      individuals sentenced to local jails or workhouses, but rather affects individuals sentenced to the
      Department of Correction.

                                                              -5-
      From the record before us, we cannot conclude that the trial judge erred

or abused his discretion in denying the petition for a suspension of the remainder

of the sente nce witho ut an evid entiary he aring. We are provided with no facts of

the underlyin g offense s. We have no knowledge of how many charges against

the Defendant were dismissed as part of the plea agreement. We know nothing

of the Defendant’s background, his potential or lack of potential for rehabilitation,

or his institutional record.   The order entered by the trial judge denying the

petition for a susp ended senten ce states that the cou rt considered the “entire

record.” The “entire record” before us reflects little more than that the Defendant

entered into a plea agreement which provided for a six -year sentence and that

he completed a drug treatment program while incarcerated.



       Because the issu es pre sente d in this appe al are m oot, this appe al is

dismiss ed.



                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JERRY L. SMITH, JUDGE




                                         -6-
