Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs September 16, 2014
Appeal from the Circuit Court for McMinn County Nos. 00-330, 00-331, 00-333, & 00-334 Carroll L. Ross, Judge
Omar Robinson, Atlanta, Georgia, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; Robert Steven Bebb, District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Norma McGee Ogle and Robert H. Montgomery, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
Appellant filed a motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1 on February 8, 2014. In the motion, appellant argued that by aligning his sentences concurrently, the trial court imposed an illegal sentence under Tennessee Code Annotated section 40-20-111(b) because he was released on bail in case numbers 00-330 (possession of cocaine with intent to sell) and 00-331 (simple possession of marijuana) when he committed the crimes in case numbers 00-333 (possession of cocaine with intent to sell) and 00-334 (simple possession of marijuana). He argued that the trial court should have aligned his sentences consecutively because Tennessee Code Annotated section 40-20-111(b) mandates consecutive sentences when a defendant commits a felony while the defendant is released on bail and the defendant is convicted of both offenses. However, the trial court summarily dismissed appellant's Rule 36.1 motion on February 10, 2014. Appellant now argues that the trial court erred by summarily dismissing his motion.
In 2013, the Tennessee General Assembly promulgated Rule 36.1, which provides, in part:
(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 the applicable statutes or that directly contravenes an applicable statute.
(b) Notice of any motion filed pursuant to this rule shall be promptly provided to the adverse party. If the motion states a colorable claim that the sentence is illegal, and if the defendant is indigent and is not already represented by counsel, the trial court shall appoint counsel to represent the defendant. The adverse party shall have thirty days within which to file a written response to the motion, after which the court shall hold a hearing on the motion, unless all parties waive the hearing.
. . . .
The legislature also amended Tennessee Rule of Appellate Procedure 3(b) to provide both the State and appellant with an appeal as of right from "an order or judgment entered pursuant to Rule 36 or Rule 36.1, Tennessee Rules of Criminal Procedure." Therefore, Rule 36.1 provided a new appeal as of right for individuals who had received an illegal sentence.
The trial court dismissed appellant's motion, stating:
After review of the file, it appears to the Court that the defendant pled guilty in this case on October 5, 2000, to possession of cocaine for resale and received an eight-year sentence suspended after six months in jail. Even though a violation of probation was later filed on the defendant, that violation was dismissed on May 7, 2007[, ] ...