             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                           FILED
                                     AT KNOXVILLE                          June 2, 1999

                                                                      Cecil Crowson, Jr.
                            FEBRUARY 1999 SESSION                     Appellate C ourt
                                                                          Clerk




STATE OF TENNESSEE,             )
                                )       C.C.A. No. 03C01-9806-CR-00221
      Appellee,                 )
                                )       Greene County
v.                              )
                                )       Honorable James E. Beckner, Judge
JAMES ALAN MORGAN,              )
                                )       (Motion for Reduction of Sentence)
      Appellant.                )




FOR THE APPELLANT:                      FOR THE APPELLEE:

James Alan Morgan, pro se               John Knox Walkup
#253649                                 Attorney General & Reporter
Brushy Mountain State Penitentiary      425 Fifth Avenue North
P. O. Box 1000                          Nashville, TN 37243-0493
Petros, TN 37845
                                        Todd R. Kelley
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        C. Berkeley Bell, Jr.
                                        District Attorney General
                                        109 South Main Street, Suite 501
                                        Greeneville, TN 37743




OPINION FILED: ________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION

       The pro se appellant, James Alan Morgan, appeals as of right from the trial court’s

denial of his motion for a correction or reduction of sentence. The appellant was found

guilty of voluntary manslaughter, a Class C felony, by a Greene County jury. The trial court

imposed a sentence of four years in the Department of Correction, plus a fine of $10,000.

On appeal, the appellant, in support of his motion, presented thirteen alleged trial errors,

ranging from lack of jury instructions to a denial of probation. We will treat appellant’s

request as an abuse of discretion issue in denying the motion. Finding no abuse of

discretion, we affirm the judgment of the trial court.



                                             I.

                             PROCEDURAL BACKGROUND



       On May 3, 1993, the Greene County grand jury indicted the appellant for the second

degree murder of Randy Hurd in 1992. At the conclusion of a jury trial on January 6, 1994,

the appellant was found guilty of voluntary manslaughter. On direct appeal, this Court

affirmed the conviction. State v. James Alan Morgan, No. 03C01-9408-CR-00305 (Tenn.

Crim. App., Knoxville, March 13, 1997), per. app. denied (Tenn. 1997).



       On May 28, 1998, the appellant filed a motion to rehear or modify sentence,

pursuant to Tenn. Code Ann. § 40-35-212 and Tenn. R. Crim. P. 35, with the Greene

County Criminal Court. On May 29, 1998, the trial court dismissed the motion to rehear

or modify sentence without a hearing. On appeal, the appellant contends his sentence

should be modified or he should be granted a rehearing on numerous trial errors:


              1.   Did the trial judge err in not instructing the jury on
                   criminally negligent homicide?

              2.   Did Mr. Mills improperly place the allegation of
                   abuse inflicted on Joyce Paxton by the defendant
                   before the court?

              3-4. Did the trial judge abuse his discretion in the use of
                   enhancement factors ten (10) and sixteen (16)?


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              5.   Did the trial judge abuse his discretion by
                   considering the statement of “longstanding dispute
                   with this woman that was present?”

              6-9. Did the trial judge abuse his discretion in not
                   considering mitigating factors two (2), three (3),
                   eleven (11), and thirteen (13)?

              10. Did the trial judge improperly state the defendant
                  does not qualify for alternative sentencing?

              11. Did the trial judge abuse his discretion in the denial
                  of probation?

              12. Did the trial judge abuse his discretion in denying
                  probation on the statement to “deter people
                  recklessly using handguns to kill?”

              13. Did the trial judge abuse his discretion in the denial
                  of probation by considering that “this was the
                  ultimate injury to the victim?”


                                             II.

                                    LEGAL ANALYSIS


       Under Rule 35(b), Tenn. R. Crim. P., a sentence may be corrected or reduced if the

trial court determines it is in the “interest of justice.” State v. McDonald, 893 S.W.2d 945,

947 (Tenn. Crim. App. 1994). The Rule provides in pertinent part:

              The trial court may reduce a sentence upon application filed
              within 120 days after the date the sentence is imposed or
              probation is revoked. No extensions shall be allowed on the
              time limitation. No other actions shall toll the running of this
              time limitation. A motion for reduction of sentence under this
              rule may be denied by the trial judge without a hearing. If the
              application is denied, the defendant may appeal but the
              defendant shall not be entitled to release on bond unless the
              defendant is already under bond. If the sentence is modified,
              the state may appeal as otherwise provided by law. A
              modification can only be as to any sentence the court could
              have originally imposed.


       The appellant has failed to establish that the “interests of justice” require a

modification or reduction of his sentence. The trial court had jurisdiction to hear a motion

filed under Rule 35(b), and this Court has jurisdiction to review the denial of the same. The

standard of review is abuse of discretion. State v. Irick, 861 S.W.2d 375 (Tenn. Crim.

App.), per. app. denied (Tenn. 1993). In this case, the motion was not timely filed by the

appellant within the strict 120-day limit under Rule 35(b) and was properly dismissed,



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because it was barred by the time limit in the rule, thus depriving the trial court of

jurisdiction. State v. Bobby Joe Raines, No. 03C01-9204-CR-00151 ( Tenn. Crim. App.,

Knoxville, October 15, 1992), per. app. denied (Tenn. 1993).



       Assuming the motion was properly filed, there would be no abuse of discretion in

denying the motion. None of the issues raised by the appellant in his brief contain new

information that the trial judge did not consider or did not have access to that would warrant

a reduction in the interests of justice. Those issues raised by the appellant were subject

to a motion for a new trial or post-conviction relief.



       In his motion, the appellant contends that his sentence was illegal; however, our

review of the record establishes that the appellant’s sentence was not illegal. In Dixon v.

State, 934 S.W.2d 69, 73-74 (Tenn. Crim. App. 1996), cited by the appellant in his reply

brief, this Court found the defendant’s sentence to be illegal, because the defendant was

sentenced as a Range III offender to be served with a Range I release eligibility rate, rather

than at the proper Range III release eligibility rate. This violated the express statutory

provisions of the sentencing guidelines, and this Court found it to be illegal and a nullity.



       The appellant was convicted of voluntary manslaughter and was sentenced to four

years as a Range I, standard offender. Thus, the appellant’s sentence was legal and not

subject to attack so long after the fact.



       The trial court’s judgment is affirmed.



                                            ________________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE




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CONCUR:



___________________________________
JERRY L. SMITH, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




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