IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
AUGUST SESSION, 1998 October 6, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9710-CR-00475
)
Appellee, )
) KNOX COUNTY
V. )
)
) HON. RAY L. JENKINS, JUDGE
JOHN B. LOWERY, )
)
Appe llant. ) (PROB ATION R EVOC ATION)
FOR THE APPELLANT: FOR THE APPELLEE:
ROG ER HO OBAN JOHN KNOX WALKUP
P.O. Box 1483 Attorney General & Reporter
Knoxville, TN 37901
CLINT ON J. M ORG AN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorn ey Ge neral
ROBERT JOLLEY
Assistant District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
In this case, the Defendant, John B. Lowery, was convicted of
possession of cocaine with intent to sell on September 16, 1993. He was sentenced
to serve eig ht (8) years in the Tennessee Department of Correction, but the
sentence was suspended and he was placed on probation for the length of the
sentence. Subsequen tly, a petition to revoke proba tion was filed, and after a
hearing, the trial court entered an order revoking probation on December 17, 1996.
Defendant was ordered to serve the entire sentence of eight (8) years by
incarceration in the Departm ent of Correction . He was given credit for two (2) days
spent in jail. The Defendant did not appeal from the order revoking probation.
Howeve r, on Ap ril 11, 1997, he timely filed a motion to modify the sentence pursuant
to Rule 35(b) of the Tennessee Rules of Criminal Procedure. This motion was
denied by the trial court on May 15, 1997, and Defendant filed a timely appeal on
June 13, 1997, from the order denying modification of the sentence. We affirm the
judgm ent of the tria l court.
In this ap peal, th e Def enda nt doe s not c hallen ge the revoca tion of h is
probation by the trial court. Inde ed, even though his notice o f appea l purports to
appeal from th e trial co urt’s order revoking probation “on May 15, 1997,” the notice
of appeal was filed more than thirty (30) days after the order was entered revoking
probation. The subsequent filing of a Rule 35(b) motion does not toll the time
limitation for filing a notice of appeal from the original judgment revoking probation.
See State v. Bilbrey, 816 S.W .2d 71, 74 -75 (Te nn. Crim . App. 19 91).
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Defe ndan t’s contention in this appeal is that the trial court erred by not
granting him jail credit for the time he spent on probation prior to it being revoked.
The standard of review of this court for appeals from the trial c ourt’s d enial o f a Rule
35(b) motion is whether the trial court abused its discretion in denying the motion.
State v. Irick, 861 S.W .2d 375 , 376 (T enn. C rim. App . 1993), perm. to appeal denied
(Tenn. 1993). Thus, a reversal on appeal is warranted only if the record contains no
substantive evidenc e to supp ort the ruling of the trial court. State v. Harkins, 811
S.W .2d 79, 82 (Tenn . 1991).
This court has previously held that a defendant is not entitled to receive
credit on his sentence for time spent on probation prior to the probation being
revoked. Young v. State, 539 S.W .2d 850 , 854-55 (Tenn . Crim. A pp. 197 6); State
v. Gill Au stin, C.C.A. No. 0 1C01-95 12-CC-0 0431 , slip op. at 4, R obertso n Cou nty
(Tenn . Crim. A pp., Nas hville, Oct. 17 , 1996).
The Defendant, while making some rather nove l argum ents in his
appe al, is not entitled to the relief he seeks. A ccording ly, the judgm ent of the trial
court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
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