IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE V . RICKIE ALAN OSBORNE Direct Appeal from the Criminal Court for Sullivan County

No. S40,366 Phyllis H. Miller, Judge

No. E1999-02278-CCA-R3-CD - Decided July 6, 2000

In this case, Defendant, Rickie Alan Osborne, was indicted for first degree murder. Following a jury trial, h e was convi cted of voluntary manslaughter. He was sentenced to serve six (6) years in the Tennessee Department of Correction and t he judgment was entered March 12, 1999. From the record, it appears that nothing else was filed in this case until August 19, 1999, when Defendant filed, pro se , a

“Motion to

Correct Illegal Sentence.” The trial court treated the motion as a motion to re duce sentence p

ursuant to Rule 35, T

ennessee Rules of

Criminal Procedur

e, and dismisse

d i t without an evidentiary hearing. From this action, Defendant has appealed. We affirm the judgment of the trial court

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed W OODALL , J. delivered the opinion of the court, in which W ILLIAM S , J. and G LENN , J. joined. Rickie A. Osborne, Tiptonville, Tennessee, pro se . Paul G. Summers, Attorne y General and Re

porter, Patricia

C. Kussman, Assis

tant Attorney Gener

al, H. Greeley Wells,

Jr., District Attor

ney General, an

d J. Lewis Combs,

Assistant District Attorney General, for the appellee, State of Tennessee. OPINION BACKGROUND From the record available in this cause, it appears that Defendant was convicted of voluntary manslaughter

after a jury trial and was sentenced to serve six (6) years in the Tennessee Department of Correction. The judgment was entered March 12, 1999. It appears that no motion for new trial was filed, and no notice of appeal was filed from the judgment. On August 19, 1999, Defendant filed a pleading s

tyled “Motion to

Correct Illegal Sentence.” In this motion, Defendant asserted that the trial court committ ed plain error in

sentencing him

by, in essence, not following the dictates of the Tennessee Criminal Sentencing Act. Defendant alleged that numerous enhancement factors were improperly applied, that various mitigating factors were notapplied that should have been, and that the applicab le factors were

not given appropr

iate weight.-2-

He further argued that he was entitled to alternative senten cing and he c oncluded the motion by stating that his sentence shou ld have been no lon

ger than four an

d one-half

(4 1⁄2) years and, more preferably, the minimum of three (3) years. In his brief on appeal, Defendant argues that the mot ion was not filed pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. Defendant also asserts that the trial court committed plain error by not following the mandates of the Tennessee Criminal Sentencing Reform Act and therefore, his sentence is an illegal sentence. He further argues that he should not have received the maximum sentence and that he was entitled to alternative sentencing rather than full incarceration. Defendant

concludes his brief by arguing that the trial court failed to follow statutory law by notconsidering alternative sentencing, that his sentence should be reduced to three (3) years after a proper consideration of enhancement and mitigating fac

tors, and that he is

entitled to alternative sentencing. ANALYSIS We have reviewed the entire record and we conclude that Defendant did not receive an “illegal sentence .” De fendant was sentenced as a Range I offender for a Class C felony, and a sentence of six (6) years incarceration is within the statutory range for sentencing for that offense. See Tenn. Code Ann. § 40-35-112(a)(3) (1997). Therefore, this sentence was clearly not illegal. See Taylor v. State , 995 S.W.2d 78, 84 (Tenn. 1999) (hol ding that a sente nce is only illegal i

f it is in direct contravention of a statute at the time it is imposed). A sentence is not “illegal” simply

because a defendant does not agree with the application of enhancement and mitigating factors or with the failure to impose alternative sentencing. See, e.g. , id. The judgment and sentence reflected therein is not illegal or void on its face. For this reason, Defendant is not entitled to relief on his argument that the sentence was imposed illegally. If treated as a motio

n to reduce sente

nce, the motion wa

s untimely filed bec

ause it was not filed within 120 days of

the date the sentence was imposed and thus, the trial court was required to summarily

dismiss the moti on. Tenn. R. Crim. P. 35(b) (stating that a motion to reduce sentence must be filed within

120 days after the date the sentence is imposed, no extensions shall be granted, and no actions shall toll

the time limitation). Furthermore, even if timely filed, a trial court has the authority to summarily dismiss a motion to reduce sentence if it has no merit. Id. Even if we waive the requirement that a notice of appeal be filed within thirty (30) days of judgment, Tenn. R. App. P. 4(a), and r eview the senten

ce on the merits, th

ere is nothing to indicate any error, inclu

ding plain error,

in the sentence im

posed by the trial c

ourt. For the foregoing reasons, the judgment of the trial court is AFFIRMED.IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE V . RICKIE ALAN OSBORNE

Criminal Court for Sullivan County

No. S40,366

No. E1999-02278-CCA-R3-CD

JUDGMENT Came the Appellant, Rickie AlanOsborne, pro se, and also came the Attorney General on behalf of the State, and th

is case was hear

d on the record on

appeal from the Criminal Court of Sullivan County; and upon consideration thereof, this Court is of the opinionthat the judgment of the trial court shall be affirmed. It i s, therefore, ordered and adjudged by this Court that the judgment of the trial cou rt i s affirmed and this case is remanded to the Criminal Court of Sullivan County for execution of the judgment of that court and for collection of costs accrued below.

It appearing that Appellant is indigent, costs of app e al are taxed to the State of Tennessee. PER CURIAM Thomas T. Woodall, Judge John Everett Williams, Judge Alan E. Glenn, Judge