Gilmore v. State

Sep 29, 1995

CR-94-1169

Versions:669 So. 2d 239

1995 Ala. Crim. App. LEXIS 328

1995 WL 579995

TAYLOR, Presiding Judge.

The appellant, Edward Gilmore, Jr., pleaded guilty to possessing cocaine, a violation of § 13A-12-212, Code of Alabama 1975. He was sentenced to three years in the penitentiary.

The appellant’s only contention on appeal is that the court abused its discretion in denying his request for probation. The sentence is a lawful sentence, within the minimum and maximum sentence prescribed by law. As this court has stated: “ ‘[T]he original granting or denial of probation is entirely within the discretion of the trial court, and is not reviewable upon appeal from a judgment of conviction.’ ” Gipson v. State, 646 So.2d 701, 704 (Ala.Cr.App.1994), quoting German v. State, 492 So.2d 622, 625 (Ala.Cr.App.1985). (Emphasis added.) “The appellant may not appeal from an order denying probation.” Rheuark v. State, 625 So.2d 1206, 1206 (Ala.Cr.App.1993). See also Lockett v. State, 475 So.2d 661 (Ala.Cr.App.1985); Roden v. State, 384 So.2d 1248, 1249 (Ala.Cr.App.1980). Of course, the revoking of a defendant’s probation is appealable and reviewable by this court. Thomas v. State, [Ms. CR-93-15, July 8, 1994] — So.2d - (Ala.Cr.App.1994).

This appeal is therefore due to be dismissed. See Thomas.

APPEAL DISMISSED.

All the Judges concur.