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State v. Thomas

Court of Criminal Appeals of Tennessee, Nashville

May 5, 2017

STATE OF TENNESSEE
v.
CARVIN L. THOMAS

          Assigned on Briefs March 14, 2017

         Appeal from the Criminal Court for Davidson County No. 2000-D-2269 Steve R. Dozier, Judge

         The Appellant, Carvin L. Thomas, filed a motion to correct an illegal sentence in the Davidson County Criminal Court pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court summarily dismissed the motion, and the Appellant appeals the ruling. Based upon our review of the record and the parties' briefs, we affirm the judgment of the trial court.

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

          Carvin L.Thomas, Only, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant Attorney General; and Glenn Funk, District Attorney General, for the appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert W. Wedemeyer and Camille R. McMullen, JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE

         I. Factual Background

         Following a jury trial, the Appellant was convicted of count one, especially aggravated robbery; count two, aggravated burglary; count four, especially aggravated kidnapping; count seven, unlawful possession of a handgun at a place open to the public; and count eight, simple possession of cocaine as a lesser-included offense of felony possession. State v. Carvin Lamont Thomas, No. M2002-01716-CCA-R3-CD, 2003 WL 21233512, at *1 (Tenn. Crim. App. at Nashville, May 28, 2003), perm. to appeal denied, (Tenn. Oct. 27, 2003). The trial court sentenced the Appellant to ten years for especially aggravated robbery; six years for aggravated burglary; twenty-four years for especially aggravated kidnapping; eleven months, twenty-nine days for possession of a handgun; and eleven months, twenty-nine days for simple possession. Id. The trial court ordered that the Appellant serve the sentences for the especially aggravated robbery, aggravated burglary, and especially aggravated kidnapping convictions consecutively and that he serve the sentences for the possession of a handgun and simple possession convictions concurrently with the other sentences for a total effective sentence of forty years. Id. On direct appeal of his convictions, the Appellant challenged only his especially aggravated kidnapping conviction. Id. This court upheld the conviction and affirmed the judgment of the trial court. Id.

         On July 20, 2016, the Appellant filed a pro se motion to correct an illegal sentence pursuant to Rule 36.1, Tennessee Rules of Criminal Procedure, arguing that his effective forty-year sentence was illegal because the trial court ordered that he serve the ten-year sentence in count one consecutively to the six-year sentence in count two and simultaneously ordered that he serve the six-year sentence in count two consecutively to the ten-year sentence in count one and the twenty-four-year sentence in count four. He contended that the trial court failed to consider the "correct method of service" when imposing the sentences and created "an impossible sentence to serve, which is illegal." On August 1, 2016, the trial court summarily dismissed the motion, finding that it failed to state a colorable claim under Rule 36.1.

         II. Analysis

         The Appellant contends that the trial court erred in summarily dismissing his Rule 36.1 motion because his sentences were imposed in a manner that makes them impossible to serve and, thus, illegal. The State argues that because the Appellant only challenges the trial court's procedure of imposing the sentences, the ...


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