### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. HAR VEY HOLT
Direct Appeal from the Circuit Court for Cocke County No. 5432 Ben W. Hooper, II, Judge

No. E1999-01552-C CA-R3-CD - Dec ided May 2, 2000

The state appeals fr

om the trial court’s order releasin g the defendant f

rom confinement f

or his second degree murder conviction and resulting twenty-

year sentence

and ordering the

defendant to
serve the remainder of

his sentence on probation. We hold that having been convicted of a violent felony and receiving a

twenty-year se

ntence, the def

endant is not eligib

le for release

with probation. The judgment of trial court is reversed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed

T IPTON , J., delivered the opinion of the court, in which W OODALL , J., and G LENN , J., joined.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney General; and Al C. Schmutzer, Jr., District Attorney Genera

l, for the appella

nt, State of Tennessee. Tim S. Moore, Newpo

rt, Tennessee, f

or the appellee,

Harvey Holt.
OPINION

T he state appeals as of right from the trial court’s order releasing the defendant from confinement

and granting him supervised probation. The defendant was convicted by a jury in 1992 for second degree murder, a Class A felony. He was sentenced as a Range I, standa rd offender to twenty years confinement in

the custody of the Department of Correction. The defendant remained at the Cocke County Jail awaiting transfer to the department. On March 3, 1999, after the Board of Paroles denied him parole, the defendant filed a motion with the Cocke County Circuit Court for a reduction in sentence. Following an April 5, 1999, motion heari ng, the trial court ordered the defendant to be released and placed on supervised probation for the remainder of his sentenc e.
The state contends that

the trial court

erred by placing the defendant on supervised probation, arguing that the trial court lacked the authority to impose such a sentence. We agree. Having been convicted of se c ond degree murder with a twenty-year sentence, the defendant is not eligible for probation. See

Tenn. Code Ann. § 40 -35-30 3(a) (providing that a defendant shall be eligible for probation if his or her sent ence is e ight years or less). Furthermore, despite the defendant’s contention that he would be eligible for probation pursuant to a community corrections sentence, see-2-

Tenn. Code Ann. § 40-36-106(e)(3), the defendant is not eligible for commu

nity corrections bec

ause he is a violent felony offender. Se e Tenn. Code Ann. § 40-36-106(3) (providing that persons convicted of violent felonies are ineligible for community corrections sen tences). The defendant argues that he is eligible f or community corr

ections under the

“special needs” section. See Tenn. Code Ann. § 40-36-106(

c). However, in

order to be eligible for community corrections sentencing under subsection (c), the defendant must be eligible for probation. See State v. Boston , 938 S.W.2d 435, 438 (Tenn. Crim. App. 1996). Although Tenn. Code Ann. § 40-35-212(d) states that the trial court “shall retain full jurisdiction over a defendant sentenced to the department during the time the defendant is being housed in a

local jail or workhouse awaiting transfer to the department[,]” the trial court does not have the authority to impose a sentence for which the defe ndant is other wise ineligible. In consideration of the foregoing and the record as a whole, we reverse the orde r releasing the defendant and granting him supervised probation.