Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 14, 2015
Appeal from the Criminal Court for Davidson County No. 2010C2534 Monte Watkins, Judge
Willard William Wright, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Laticia Alexander, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
On September 14, 2010, the Davidson County Grand Jury returned an indictment in case number 2010-C-2534, charging Petitioner in Count 1 with the offense of burglary of a motor vehicle in violation of T.C.A. § 39-14-402(a)(4), a Class E felony, and in Count 2 with theft of property of the value of $500.00 or less in violation of T.C.A. § 39-14-103, a Class A misdemeanor. On May 17, 2012, Petitioner signed a petition to enter a guilty plea pursuant to a negotiated plea agreement to dispose of the charges in case number 2010-C-2534.
Pursuant to the agreement, Count 2 charging misdemeanor theft would be dismissed. As to Count 1, we quote exactly what is typed in the petition to plead guilty:
Ct. 1: "Burglary of Motor Vehicle, " Class E Felony under TCA 39-14-402. Sentence shall be 4 years at 35% - Range II, (suspended), supervised probation, to be served consecutively to sentence in Case No. 2010-C-2506, for an effective sentence of 8 years at 35% Range II, (suspended), supervised probation.
A judgment was prepared, and a copy is in the appellate record, bearing the signature of the trial judge, but the document does not bear any stamp filed date bearing the name of the court clerk or deputy clerk, although someone, not identified, hand wrote "5-17-12" above the pre-printed "Date of Entry of Judgment" in the lower right hand corner of the judgment document. Also, even though neither the Petitioner nor Petitioner's trial counsel signed the judgment document, the court clerk's pre-printed certificate of service that a copy of the judgment was served upon Petitioner or his counsel appears to be blank - however, the copy in the record is cut off and does not show the very bottom of the judgment.
Nevertheless, the order entered by the post-conviction court which dismisses the petition is properly stamp filed by the clerk. In that order, the post-conviction court states that the judgment of conviction was entered on May 17, 2012. For this reason, but only for the purposes of this particular appeal, we will accept that the judgment was filed on May 17, 2012. The judgment includes all provisions of the negotiated plea agreement as set forth in the petition to enter plea of guilty. Subsequently, Petitioner was found to be in violation of his probation. The revocation petition is not in the record, but a copy of an amended judgment as to the conviction of burglary of a motor vehicle in case number 2010-C-2534, stating that Petitioner conceded a probation violation, is in the record. All pertinent provisions in the amended judgment are identical to the provisions in the original judgment except: (1) Petitioner had a different trial counsel representing him, and (2) the amended judgment ordered the four-year sentence to be served by incarceration rather than probation. The amended judgment is not stamped filed indicating the date it was filed by the clerk of the trial court. Thus, without some further indication we do not know the exact date the amended judgment was actually filed with the clerk's office.
The importance of this detail is that a judgment of conviction is not entered until it is actually filed with the trial court clerk. State v. Stephens, 264 S.W.3d 719, 730 (Tenn. Crim. App. 2007); State v. Kenny Kimble, No. W2012-00407-CCA-R3-CD, 2013 WL 3795949 (Tenn. Crim. App. July 22, 2013). A judgment of conviction is not "entered" simply upon the act of a trial court judge signing his/her name thereto, dating the document, and then leaving it on his/her bench or desk. We will assume that since the amended judgment is included in the appellate record prepared by the clerk, that it was at some time properly provided to the trial court clerk for filing. But, there is nothing in the record to show what date it was filed by the clerk.
However, the date of the filing of the amended judgment is not relevant to the disposition of this appeal. Petitioner's pro se petition for post-conviction relief actually attacks his conviction imposed in the original judgment entered on May 17, 2012. The post-conviction petition was filed June 30, 2014. The Petitioner raises the ...