# FILED
December 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9712-CC-00574 Appellee, ) ) Cheatham County V. ) ) Honorable Robert E. Bur ch, Judge ) CARLOS DEWAYNE PA RKER, ) (Aggravate d Sexual B attery)

) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Shipp R. Weems John Knox Walkup District Public Defender Attorney General & Reporter Steve Stack Kim R. Helper Assistant Public Defender Assistant Attorney Gener al P.O. Box 160 425 Fifth Avenue North Charlotte, TN 37036 Nashville, TN 37243-0493 Dan M. Alsobrooks District Attorney General James Kirby Assistant District A

ttorney General P.O. Box 580 Ashland City, TN 37015

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge O P I N I O N-2- The appellant, Carlos Dew ayne Parker, was i ndicted by the Cheatham County Grand Jury for various sexual offenses i ncluding rape, rape of a chil d, sexual battery, agg ravated sexual battery, and incest. He entered negotiated pleas of nolo contendere to one count each of rape, see T.C.A. § 39-13-503, and aggravated sexual

battery, see T.C.A. § 39-13-504. Pursuant t o his plea agreement, he received co ncurrent eight-year sentences for each offense. At a hearing to determine the manner of service of these sen tences, the trial court concluded that the appellant w as eligible for community corrections under the “special needs” provi sion of T.C.A. § 40-36-106(c). However, after rev iewing the statutory sentencing c

onsiderations, see T.C.A. § 40-35-103, and arguments of counsel, the trial court ordered confinement with the Tenness ee Department of Correction.
The appellan t argues that the trial court abuse d its discretion in denying a sentence to community correc tions. We find that the appellant is inelig ible for community corrections and affirm the judgment of the trial cour t.
To be eligible for consideration of a sentence to com munity corrections, an offender must meet the requirements of T.C. A § 40-36-106. Subsection (a) of that statute lists the general eligibility criteria and disqualifies persons who, like the appellant, are convic ted of “crimes against the per son as provided in titl e 39, chapter 13, parts 1-5.” T.C .A. § 40-36-106(a)(2).-3- Neither is the appellant el igible under the “speci al needs” provision of subsection (c). See T.C.A. § 40-36-106(c). “ Before an offender may be sentenced pursuant to subsection (c), the off ender must be found eligible for probation.” State v. Grigsby , 957 S.W.2d 541, 546 (Tenn. Crim. App. 1997) (citing State v. Staten , 787 S.W.2d 934, 936 (Tenn. Crim. App. 1989)); see State v. Boston , 938 S.W.2d 435, 43 8 (Tenn. Ct. App. 1996). The appellant is not eligible for probation. See T.C.A. § 40-35-303 (“a defendant shal l not be eligible for probation under the provisions of this chapter if the de fendant is convicted of a violati on of . . . § 39-13-504”). Therefore,he is not eligible for community corrections.

Because we find that the appella nt is in eligib le for co nsidera tion of a sentence to community corrections, we need not directly address the appellant’s argument that the trial cour t abused its discretion i n ordering confinement.
The judgment of the trial court i s affirmed.-4- __________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________ JOE G. RILEY, Judge

__________________________ L. T. LAFFERTY, Senior Judge