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State v. Faulkner

Court of Criminal Appeals of Tennessee, Jackson

January 18, 2017

STATE OF TENNESSEE
v.
JERRY L. FAULKNER

          Assigned on Briefs July 26, 2016

         Appeal from the Criminal Court for Shelby County Nos. 90-00364, 90-10186, 90-10187, 90-10189, 90-10190, 90-10191, 90-10192, 90-10193 Lee V. Coffee, Judge

         Defendant, Jerry L. Faulkner, appeals as of right from the Shelby County Criminal Court's denial of his motion under Tennessee Rule of Criminal Procedure 36.1 to correct an illegal sentence. Defendant contends that the trial court erred by concluding that relief was not available because his illegal sentence had expired and thus was not subject to correction under Rule 36.1. After a thorough review of the record and applicable law, we affirm the judgment of the trial court.

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

          Monica A. Timmerman, Memphis, Tennessee, for the appellant, Jerry L. Faulkner.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Amy P. Weirich, District Attorney General; and Kenya Smith, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Camille R. McMullen, and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Background

         According to a preliminary order entered by the trial court, Defendant was arrested for aggravated robbery on August 29, 1989, in Case No. 90-00364. He was released on bond on August 31, 1989. While on bond, Defendant committed "a series of other felony offenses and was arrested on April 1, 1990, for attempted robbery (90-10186), aggravated robbery (90-10189, 90-10190, 90-10191 and 90-10193) and theft of property over $1, 000 (90-10187 and 90-10192)."

         On June 17, 1991, Defendant plead guilty to five counts of aggravated robbery, two counts of theft of more than $1, 000, robbery with a deadly weapon, and attempted aggravated robbery in exchange for concurrent sentences. He received an agreed effective sentence of ten years. The trial court ordered the sentence to be served consecutively to the sentence previously imposed in Case No. 90-10194.

         On November 24, 2014, Defendant, who is incarcerated in a federal corrections institution in Memphis for unrelated offenses, filed the present motion pursuant to Tennessee Rule of Criminal Procedure 36.1. In the motion, Defendant alleged that he had been released on bond for aggravated robbery (90-00364) when he was arrested and charged with committing four counts of aggravated robbery (90-10190, 90-10191, 90-10193, and 90-10189), theft of property more than $1, 000 (90-10187 and 90-10192), and attempted aggravated robbery (90-10186). Therefore, his sentences should have been ordered to run consecutively rather than concurrently resulting in an illegal sentence. See T.C.A. § 40-20-111(b). Defendant concedes that his effective ten-year sentence expired on April 15, 2010.

         The trial court appointed counsel, and an amended motion to correct an illegal sentence and a second amended motion to correct an illegal sentence were filed. On December 7, 2015, the trial court entered a written order denying the motion without an evidentiary hearing. Relying on the supreme court's opinion in State v. Brown, 479 S.W.3d ...


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