Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 11, 2015
Appeal from the Criminal Court for Davidson County No. 2000-B-783, 2001-A-8 Steve Dozier, Judge
Bruce Lamont Smith, Memphis, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney General (Senior Counsel), for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which Camille R. McMullen and Roger A. Page, JJ., joined.
JAMES CURWOOD WITT, JR., JUDGE
On July 6, 2000, the defendant pleaded guilty to one count of robbery in exchange for a three-year sentence to be served as six months' incarceration followed by probation. A probation violation warrant issued on November 17, 2000, alleging that the defendant violated the terms of his probation by garnering new charges, including a charge of aggravated robbery. The defendant pleaded guilty to one count of robbery in the new case on July 5, 2001, in exchange for a four-year incarcerative sentence to be served concurrently with the previously imposed three-year sentence.
On July 28, 2014, the defendant filed a motion pursuant to Rule 36.1 of the Tennessee Rules of Criminal Procedure claiming that the sentence imposed for his 2001 robbery conviction was illegal because the trial court ordered concurrent sentencing when consecutive sentencing was required. The trial court summarily dismissed the motion on September 30, 2014, finding that the defendant failed to state a colorable claim for relief as required by the terms of Rule 36.1 because consecutive sentencing was not mandatory in his case.
The defendant appeals and challenges the summary denial of his motion, again claiming that the sentence imposed for his 2001 robbery conviction is illegal because the trial court ordered that the four-year sentence imposed for that offense be served concurrently to his previously imposed three-year sentence in direct contravention of applicable statutory provisions. The State contends that the trial court did not err by dismissing the motion because, contrary to the defendant's assertion, the imposition of concurrent sentences in his case did not contravene any statute.
Prior to July 1, 2013, a properly filed petition for writ of habeas corpus was the sole mechanism for pursuing an illegal sentence claim. See Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005) ("[T]he proper procedure for challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus, the grant or denial of which can then be appealed under the Rules of Appellate Procedure."); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) ("A habeas corpus petition, rather than a motion to correct an illegal sentence, is the proper procedure for challenging an illegal sentence."); Stephenson v. Carlton, 28 S.W.3d 910, 912 (Tenn. 2000) (stating that a void sentence was properly challenged in a petition for writ of habeas corpus). Our supreme court then created new Rule 36.1, which became effective on July 1, 2013, and which provides:
(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.
(c)(1) If the court determines that the sentence is not an illegal sentence, the court shall file an order denying the motion.
(2)If the court determines that the sentence is an illegal sentence, the court shall then determine whether the illegal sentence was entered pursuant to a plea agreement. If not, the court shall enter an amended uniform judgment document, ...