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State v. Morrow

Court of Criminal Appeals of Tennessee, Jackson

November 16, 2016

STATE OF TENNESSEE
v.
DAVID T. MORROW

          Assigned on Briefs November 1, 2016

         Appeal from the Criminal Court for Shelby County No. 01-07974, 02-02291 Glenn Ivy Wright, Judge

         The appellant, David T. Morrow, appeals the summary denial of his Motion to Correct Illegal Sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The appellant's sentences have expired. He argues, however, that he is entitled to relief because he received concurrent sentences instead of statutorily required consecutive sentences, and the trial court erred in summarily denying his motion without a hearing. Following our review, we conclude the appellant does not state a colorable claim for relief, and we affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Patrick E. Stegall, Memphis, Tennessee, for the appellant, David T. Morrow.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         On October 8, 2000, the appellant was arrested and charged with unlawful possession of a controlled substance with intent to sell or deliver. While released on bail, the appellant was arrested and charged with failure to appear. The appellant pled guilty to both offenses, and the trial court sentenced him to concurrent two year sentences.

         On August 22, 2013, the appellant filed a "Motion to Correct Illegal Sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, " arguing that his concurrent sentences were illegal because he committed the failure to appear while released on bail. The trial court summarily denied the motion, and the appellant appealed. This Court held the appellant stated a colorable claim for relief under Rule 36.1 and remanded the case to the trial court for appointment of counsel and further proceedings. State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL 3954071 (Tenn. Crim. Ct. App. Aug. 13, 2014).

         Upon remand and after appointment of counsel, the appellant filed an "Amended Motion to Correct Illegal Sentence, " arguing that his sentence was illegal because consecutive terms are mandated by both Tennessee Code Annotated section 40-20-111 and Tennessee Rule of Criminal Procedure 32(c)(3)(C). Relying on the Tennessee Supreme Court's recent decision in State v. Brown, 479 S.W.3d 200 (Tenn. 2015), the trial court summarily dismissed the appellant's amended motion because his sentences were expired. This timely appeal followed.

         Analysis

         The appellant argues that the trial court erroneously denied his motion without a hearing. Though conceding his sentences have expired, he argues that he is not precluded from relief and is entitled to an evidentiary hearing. The State argues that the appellant is not entitled to relief under Rule 36.1 because his sentences have expired. We agree with the State.

         Tennessee Rule of Criminal Procedure 36.1 provides that the appellant "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." Tenn. R. Crim. P. 36.1(a)(1). "A motion to correct an illegal sentence must be filed before the sentence set forth in the judgment order expires." Tenn. R. Crim. P. 36.1(a)(1). A sentence is illegal if it "is not authorized by the ...


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