Assigned on Briefs May 6, 2014
Appeal from the Criminal Court for Shelby County No. 07-06894 John W. Campbell, Judge
Travis Davison, Memphis, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Chris West, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the Court, in which Joseph M. Tipton, P.J., and Camille R. McMullen, J., joined.
ALAN E. GLENN, JUDGE
The record shows that in 2007, the petitioner was indicted for one count of possession of marijuana with intent to sell and one count of possession of marijuana with intent to deliver, Class E felonies. See State v. Travis Davison, No. W2011-02167-CCA-R3-CO, 2012 WL 3114572, at *1 (Tenn. Crim. App. July 31, 2012). On January 4, 2008, the petitioner pled guilty to possession of marijuana with intent to sell, a Class E felony. The plea agreement and judgment reflected that the petitioner would be sentenced to eighty-five days as a time-served settlement, although the petitioner claims that he pled guilty in exchange for a ninety-day term of imprisonment with five days of sentence credit.
On August 22, 2011, the petitioner filed a "motion for correction of clerical error, or clarification of judgment pursuant to Rule 36 Tennessee Rules of Criminal Procedure." In his motion, the petitioner argued that because he received a sentence of less than one year, "the offense was reduced to a misdemeanor offense" from a Class E felony and that the judgment should be altered to reflect that he was convicted of a misdemeanor. The trial court denied his motion, and the petitioner appealed. This court dismissed the petitioner's appeal on July 31, 2012, determining that there was no appeal as of right from the denial of a Rule 36 motion to correct a judgment.
Sometime after July 31, 2013 and before August 8, 2013,  the petitioner filed a motion for correction of illegal judgment or clarification of judgment pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure. On August 8, 2013, the trial court entered an order denying the motion, finding that the petitioner's case "was not reduced to a misdemeanor but instead he clearly entered a guilty plea to a felony." This timely appeal followed.
The petitioner argues that his sentence for Class E felony possession of marijuana with intent to sell is illegal. He asserts that, because Tennessee Code Annotated section 40-35-105 mandates a sentence of not less than one year, the trial court did not have authority to impose the sentence he received. The State agrees that the petitioner has presented a colorable claim of an illegal sentence and that the case should be remanded for an evidentiary hearing.
The Tennessee Rules of Criminal Procedure were amended effective July 1, 2013, with the addition of Rule 36.1 which provides as follows:
(a) Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by ...