Gilmore v. State, CR-94-1169
| Decision Date | 29 September 1995 |
| Docket Number | CR-94-1169 |
| Citation | 669 So.2d 239 |
| Parties | Edward GILMORE, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Davis Whittlesey, Opelika, for Appellant.
Jeff Sessions, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for Appellee.
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-93-415, 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.
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Ex parte Rivers, CR-94-2335
...451 So.2d 235, 239 (Ala.1983). The appellants have no remedy by way of appeal, as this court recently observed in Gilmore v. State, 669 So.2d 239, 239 (Ala.Cr.App.1995). "As this court has stated: ' "[T]he original granting or denial of probation is entirely within the discretion of the tri......