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State v. Dillard

Court of Criminal Appeals of Tennessee, Jackson

May 18, 2017

STATE OF TENNESSEE
v.
TORIAN DILLARD

          Assigned on Briefs May 2, 2017

         Appeal from the Criminal Court for Shelby County No. 03-01405 James C. Beasley, Jr., Judge

         The defendant, Torian Dillard, appeals from the Shelby County Criminal Court's denial of his Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence. The defendant contends his sentences are illegal because the State failed to provide proper notice of its intent to seek enhanced punishment pursuant to Tennessee Code Annotated § 40-35-202(a). The defendant also argues the trial court improperly relied on two prior theft convictions in classifying him as a career offender. Discerning no error, we affirm the judgment of the trial court.

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

          Torian Dillard, Mountain City, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         On February 10, 2003, the defendant shot his ex-girlfriend in the head, but failed to kill her, while she and her one-year-old daughter waited to pick up her other children from school. After a jury trial, the defendant was convicted of attempted first degree murder, a Class A felony, and reckless endangerment with a deadly weapon and being a convicted felon in possession of a handgun, Class E felonies.

         Prior to trial, on October 21, 2003, the State filed a notice of intent to seek enhanced punishment. The notice listed six prior felonies upon which the State intended to rely, including: failure to appear and escape, Class E felonies, theft over $500 and robbery, Class D felonies, and attempted rape and aggravated assault, Class C felonies. The trial court held a sentencing hearing on November 12, 2004. At the sentencing hearing, the State orally amended its notice to reflect the defendant's prior robbery conviction was actually a prior conviction for theft over $1, 000. The State noted that defense counsel stipulated to the defendant's prior convictions as listed in the pre-sentence report, and reminded the trial court that the convictions "were also admitted to by [the defendant] on the stand." See State v. Torian Dillard, No. W2005-00152-CCA-R3-CD, 2006 WL 1044087, at *6 (Tenn. Crim. App. Apr. 19, 2006), perm. app. denied (Tenn. Sept. 5, 2006).

         Under this posture, the State read the defendant's prior convictions into the record, as follows:

The defendant's been convicted of failure to appear, a Class E felony under Indictment No. 98-13998. He's been convicted of criminal-attempt rape, a Class C felony under Indictment No. 98-01386. He's been convicted of aggravated assault, a Class C felony ...

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