FREDERICK O. EDWARDS
STATE OF TENNESSEE
Assigned on Briefs December 2, 2014.
Appeal from the Circuit Court for Weakley County No. 2000-CR4 William B. Acree, Judge
Frederick O. Edwards, Memphis, Tennessee, pro se.
Herbert H. Slatery, III, Attorney General and Reporter; and Rachel E. Willis, Senior Counsel, for the appellee, State of Tennessee.
D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Roger A. Page, JJ., joined.
D. KELLY THOMAS, JR., JUDGE.
In November 1996, a jury found the Petitioner guilty of four counts of sale of less than .5 grams of cocaine. On November 4, 1996, the trial court sentenced the Petitioner to six years on each count, to be served concurrently, for a total effective sentence of six years. On appeal, this court reversed one conviction and affirmed the remaining three convictions, as well as the sentences. State v. Frederick Ottitus Edwards, No 02C01-9704-CC-00157, 1998 WL 208056, at *6 (Tenn. Crim. App. Apr. 29, 1998).
On February 29, 2000, while on probation for the sale of cocaine convictions, the Petitioner pled guilty to one count of aggravated robbery. The trial court imposed a sentence of twelve years, to be served concurrently to the Petitioner's existing six-year sentence. The trial court entered an order revoking the Petitioner's probation on April 20, 2000.
On July 8, 2014, the Petitioner filed a motion to correct an illegal sentence and vacate his guilty plea pursuant to Tennessee Rule of Criminal Procedure 36.1. The Petitioner argued that the trial court was required to order that his twelve-year sentence for aggravated robbery be served consecutively to his six-year sentence for sale of cocaine because he was on probation when he committed the robbery. He further argued that the illegal sentence was a material element of his plea agreement and concluded that he should be allowed to withdraw his guilty plea.
On July 10, 2014, the trial court entered an order summarily dismissing the motion. The trial court treated the motion as a petition for post-conviction relief and denied it as being untimely filed. This appeal followed.
On appeal, the Petitioner contends that the trial court erred by treating his Rule 36.1 motion as a petition for post-conviction relief. He further asserts that he has made a colorable claim that his sentence is illegal. In particular, the Petitioner alleges that his sentences were required to run consecutively and that the order of concurrent service was in direct contravention of applicable statutes. The State concedes that the trial court erred in construing the Petitioner's motion as a petition for post-conviction relief. However, the State argues ...