# FILED July 16, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL 1999 SESSION
STATE OF TENN ESSEE , ) ) C.C.A. No. 02C01-9808-CC-00255 Appellee, ) ) Fayette County v. ) ) Honorable Jon K erry Blackwood, Judge LAUNDRA M. HU LBERT , ) ) (Denial of Probation) Appellant. )

FOR THE APPELLANT : FOR THE APPEL LEE : ANDREW S. JOHNSTON PAUL G. SUMMERS 3074 East Street Attorney General & Repor ter Memphis, TN 38128 PATRICIA C. KUSSMANN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED: ____________________________

_______________ AFFIRMED PU RSUANT TO R ULE 20 L. T. LAFFER

TY, SENIOR JUDGE2 

### O P I N I O N
The defendant, Laundra M. Hulbert, appeal s as of right from a denial of proba tion bythe Fayette County Cir cuit Court following

his convictions for tw

o counts ofaggravated robbery. At the conclusion of a sentenci ng hearing, the trial court imposed concurrent sentences of eight years for each count as a Range I, standard offender, in the Department of Correction. The defendant presents one appellate issue: whether the trial court erred in f aili ng to sentence the defendant to probati on where the defendant was el igible and suitable for probation. After a review of the entire record, briefs of the parties, and applicable law, we affirm the trial court’s judg ment. FACTUAL BA CKGROUND
The Fayette County grand jury in dicte d the defendant and four others for the aggravated robbery

of Thomas and Lou Scott on November 5, 1997, for taking a money box containing approximately $1,000, checks, and food stamps, two watches , a wallet, and a cellular phone. This offense w as accomplished with a deadlyweapon, to wit, two pistols. On July14, 1998, the defendant entered two pl eas of guilty to aggravated robbery as charged in the two-c ount indictment. Thed efendant requested a sentencing h earing for the trial court to deter mine the length of the sentence and to consider full probation.
At the sentencing hearing on August 20, 1998, Thomas Scott testified that he a nd his wife, Lou Scott, we re watching TV:

[W]hen two men ran into our room; came into our hous e and came into the den where w e were sitting and poi nted guns at us; asking us where was the money at; using a little pro fanity. And one of the men went over and opened our frontdoor of the den and kicked the glass out of

the door, trying to get the whole door open; still coming back and asking , “Where’s the money; where’s the money; where’s the money?”3 And we finally -- We heard others going through theback part of the house. We finally told them wher e the money box was that I brought from the store. After they’d gone through the house with other people, the other s found the box and they left. They didn’t harm us, but they left out the back door, and they’d cut our telephone wire and that made it a little difficult to call anyone. At the time ofsentencing, the defendant was 20 years old and was empl oyed as a laborer at Hart Manu factur ing Company in Colli erville, Tennessee. On th e night of the robbery, the defendant was with Fr ankie Driver, w

ho is his cousin, C orey Albrig ht, Shawn Alston, and Demius “Dinky” Hullom. Alston told them w here they could make a “sta n g [sting]”. Hullom drove them to the Sc otts’ residence. The defendan t kn ew Alston had a gun. The defendant saw Alston and Alb right go to the back of the house, while Driver stood at the side of the house, andthe defendant stood in some bushes. The defendant testified he d id not kno w e xactly what they were going to do. The o thers ran back to the car, and the defendant learned that there w as another

gun. They drove to

Driver’s house, and the defendant receiv ed about $225. The defendant denied that he had a g un and gave a written st

atement to law enforcement officers of his account. The record reveals that in his statement, the co-defendant, Cor eyAlbright, placed the defendant in a more active role in the robbery of the Scott s. At the conclus ion of the hearing, the trial court imposed concurrent se ntences of eightyears in the Department of C orrection and denied probation,be cau se of the “seriousness of the offens e, deterrence, and that it wo uld depreciate the seriousnes s of this matter.” SENTENCING CONSIDERATIONS
The defendant conten ds th at he is eligible for pr obation under the provisi ons of Tenn. Code Ann. § 40-35 -303(a), which states that “[a] defendant shall be elig ible for probation under the provisions of this chapter if the sentence actually imposed upon such defendant is eight (8) y ears or less. ” That is a true statement; how ever, the continuing4

language of the statute states, “provided, that a defend ant shall not be eligiblefor probation under th e provisions of this chapt er if the defendant is convicted of a violation of . . . § 39-13-402. . . .” Tennessee Code Annotated § 39-13-40 2(a) states: Aggravated robbery

is robbery as defined in § 39-13-401: (1) Accomplished with a deadly w eapon or by display of any article used

or fashioned to lead the victim to reasonably believe it to be a deadly weapon; or (2) Where the victim suffer s serious bodily inju ry. In Terry McMahan v. State, No. 03C01-9410-CR-00379, 1995 WL 328222 (Tenn. Crim. App., Knoxville, June 2, 1995), per. app. denied concurring in results only (Tenn. 1995), this Court affirmed the trial court in deny ing the defendant placement in a community

corrections program for the offense o f aggravated robbery, due to the defendant’s extensive drug abus e. We hav e held th at for persons to be eligibl e for commun it ycorrections programs a person must first be statutor ily eligible for pr

obation. Probation eligibility i s governed by Tenn. Code Ann. § 40-35-303. Defendants convicted of aggravated robbery, under Tenn. Code Ann. § 39-13-402, ar e not eligible for

probation.
Pursu ant to Rule 2 0 of the Rules of the Court of Crimi nal Appeals of Tennessee, we hold the defendant is not eligi ble f or considera tion of probation, and the trial court’s judgment in denying pr obation is affirmed.

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______ _ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:5

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ DAVID G. HAYES, JUDG E