Assigned on Briefs October 21, 2014 at Knoxville
Appeal from the Circuit Court for Henderson County No. 99-073-1 Roy B. Morgan, Jr., Judge
Kevin Daws, pro se, as the appellant.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Jerry Woodall, District Attorney General; and Angela R. Scott, Assistant District Attorney General, for the appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
On May 12, 2014, the Appellant filed the instant pro se "Motion Pursuant to Tennessee Rules of Criminal Procedure Rule 36.1 to Correct an Illegal Sentence, " asserting that the trial court violated Tennessee Code Annotated section 40-20-111(b) by running "Case No. 99-CR-540 concurrent with Case No. 990731." On May 16, 2014, the trial court dismissed the Appellant's motion finding that the Appellant failed to state a colorable claim because the "court record in Henderson County Circuit Court No. 99-073-1 fails to reflect any agreement or plea that allowed Defendant's sentences to run concurrently with any other sentence." We agree with the trial court.
According to the Rule 36.1 motion, the Appellant was arrested on August 9, 1998, (Case No. 99-CR-540) and was released on bail. While out on bail, he committed and was arrested for aggravated robbery and possession of a weapon (Case No. 99-073-1).
On December 2, 1999, the Appellant pleaded guilty to aggravated robbery in Count 1 of Case No. 99-073-1 and was sentenced to eight years and pleaded guilty to possession of a weapon in Count 2 of Case No. 99-073-1 and was sentenced to two years. The judgments show that the sentences in Count 1 and Count 2 were ordered to be served concurrently. The judgments do not state that the sentences in Case No. 99-073-1 will run concurrently with Case No. 99-CR-540. In fact, the judgments in Count 1 and Count 2 in Case No. 99-073-1 make no reference whatsoever to Case No. 99-CR-540.
The Appellant contends that his motion to correct an illegal sentence raised a colorable claim, and therefore, the trial court erred when it summarily dismissed the motion.
On July 1, 2013, Tennessee Rule of Criminal Procedure 36.1 became effective. Rule 36.1 provides in pertinent part that:
(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 ...