FILED

May 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER SESSION, 1996

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9603-CR-00087

)

Appellee, )

)

) DAVIDSON COUNTY

VS. )

) HON. THOMAS H. SHRIVER

ROBERT ENLO ) JUDGE

SOWELL, JR., )

)

Appellant. ) (Denial of Probation)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN T. CONNERS, III CHARLES W. BURSON

134 Riverwood 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 Second Ave. North

Nashville, TN 37201-1649

OPINION FILED ________________________

APPEAL DISMISSED

DAVID H. WELLES, JUDGE
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 other ch arge s were 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.

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OPINION

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

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 burglary. His plea agreement was a “package deal,” in which the State

agreed to dismiss other charges against the Defendant.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 RegionalWorkhouse. 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 part of the plea agreem ent the Defendant had agreed to drug treatment in

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

docum ents listed as a special 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
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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 balance of his 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 copy of a letter defense counsel had written to the assistant

district attorney shortly after the pleas were entered confirming 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

sentence.” The trial court promptly denied the petition to reconsider without a

hearing. It is from the orders of the trial 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 conducting

a hearing. In the event the trial court was not required by law to conduct a

hearing on the petition, the Defendant argues that the trial judge abused 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 “absconded from parole.” This Court subsequently ordered that this

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

why it should not be.
-4-

Counsel for the Defendant subsequently filed an affidavit stating that the

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

currently serving his sentence in the Department of Correction. In his affidavit,

his defense counsel asserted that, even though the issues raised on appeal were

moot insofar as the Defendant is concerned, there was a routine practice in the

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

sentences without a hearing and that these cases generally evaded appellate

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 present 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 longer justiciable. Id. A moot case is one that has lost its

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

moot if it no longer serves as a means to provide relief to the prevailing 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 capable

of repetition yet evading review. Id. Whether to take up cases that 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 Defendant even if we determine that the trial judge erred or abused

his discretion in denying the Defendant’s petition to suspend the balance of his
2

 W e note that this is sue is distinct fr om a m otion to red uce sentence pur suant 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.

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

Defendant’s petition for a suspended sentence, in view of the Defendant’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 capable

of repetition yet evade appellate review. We do not believe that our sentencing

laws mandate that a trial judge conduct an evidentiary hearing each and every

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

a sentence. See Tenn. Code Ann. §§ 40-35-212(c); 40-35-314(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 statute

itself provides only that the trial judge maintains jurisdiction over those

defendants 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 sentence may be made at no less than two (2) month

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

of the statute implies that a hearing must be conducted for every application.

Certainly the trial court may conduct an evidentiary hearing 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.
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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 sentence without an evidentiary hearing. We are provided with no facts of

the underlying offenses. 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 suspended sentence states that the court 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 issues presented in this appeal are moot, this appeal is

dismissed. 

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOHN H. PEAY, JUDGE

___________________________________

JERRY L. SMITH, JUDGE