1 On April 4, 20 01, this cour t denied the a ppellee’s m otion to late-file his b rief following the e xpiration o f a

deadline set by the court pursuant to t he appellee’s previous requ est for an extensio n of time in which to file his brief. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs M

ay 16, 2001
STATE OF TEN

NESSEE v. DA

VID D. HARR

IS
Direct Appeal from the Criminal Court for Davidson County

No. 98-A-814 Seth Norman, Judge

No. M1999-02469-CCA-R3-CD - Filed September 19, 2001

The State appeals the judgment of the Davidson County Criminal Court suspending the appellee’s sentences for aggravated robbery a nd granting the appellee probation for a term of twenty-fou

r years. Following a review of the record and the State’s brief, 1 we reverse the judgment of the trial court and remand this case for proceedings consistent with this opinion. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Reversed a

nd Remanded.

N ORMA M C G EE O GLE , J., delivered the op inio n of the court,in which J ERRY L. S MITH and J OHN E VERETT W ILLI

AMS , JJ., joined.

Paul G. Summers, Attorne y General and Reporter; Russ

ell S. Baldwin, Assista

nt Attorney G

eneral; Victor S. Johnson, III, District Attorney General; and Charles A. Carpenter, Assistant District Attorney General, for the appellant, State of Tennessee.

LionelR. Barrett, Jr., a

nd Jefre S. Goldtra

p, Nashville, Tenn

essee, for the a

ppellee, David

D. Harris.
OPINION

I. On June 16, 1999, the appellee, David D. Harris, pled gu ilty in the Da

vidson County Criminal Court to seven counts of aggravated r obbery. The pleas arose from the appellee’s participation in a series of robberies at v arious business es

tablishments in the N

ashville metropolitan
area in October and November of 1997. According to the appellee, he used an unloaded g un during the robberies to f

righten his victim

s. Additionally

, he bound his

victims with “flex-cuffs” and, on several occasions, threa

tened to locate a

nd harm the victims

should they report the

robberies to the police. Both the appellee and his co-defendant, Robert W. Proudfoot, partic

ipated in the robberies-2-

for the purpose of accumulating sufficient funds to create and operate an adult enterta inment Internet site.

The appellee’s gu ilt y plea s were unaccompanied by any agreement concerning sentencing. Accordi ng ly, the trial court conducted a sentencing hearing on October 27, 1999. At the conclusion of the hearing, the trial court imposed minimum sen t ences of eight years incarcer ation in the Tennessee Department of Correction for each count of agg ravated robbery. T

he trial court further ordered that

four of the appellee’s eight-year sente nces be served concurrently with one another and concurrently with two, consecutive ten-y ea r sen tences imposed by the Williamson County Circuit Court on October 14, 1998, pursuant to the appellee’s convictions of aggravated robbery in that county. As to the remaining three Davidson County sentences, the trial court ordered that they be served consecutively to one ano the r and consecutiv ely to the Willia

mson County sentences. The trial court, however, suspended the Davidson County

sentences,

effectively placing the appellee on probation for twenty-four y ears following the appellee’s service of his Williamson County sentences. The State now appeals the trial court’s grant of pr obation.

II. Appellate revie w of the manner of service of a sentence is de novo with a presumption of correctness

. Tenn. Code. Ann. § 4 0-35-402(d) (19

97); State v. Ashby , 823 S.W.2d 166, 168 (Tenn. 1991). The presumption of correctness

is conditioned upon an affirmative showing in the record that the trial court considered sentencing principles and all releva n t facts and circumstances. Ashby , 823 S.W.2d at 169. “If the trial court appl ies inapp ropriate factors or otherwise fails tofollow the 1989 Sentencing [Reform] Act, the presumption of correctness falls.” Statev. Shelton , 854 S.W.2d 116, 123 (T enn. Crim. App. 1992

); see also Statev. Price , 46 S.W.3d 785, 819 (Tenn. Crim. App. 2000), perm. to appeal denied , (Tenn. 2001). In this case, the trial court failed to comply with Tenn. Code Ann. § 40-35-303(a) (1997), whic h prohibits probationary sentences in aggravated

robbery cases. Accordingly , not only does the

presumption of cor

rectness fall, but we must also reverse the judgment of the trial court and remand

this case fo r proceedin gs consistent with this opinion.

___________________________________ NORMA McGEE OGLE, JUDGE