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State v. Parrish

Court of Criminal Appeals of Tennessee, Jackson

March 12, 2018

STATE OF TENNESSEE
v.
ALEX PARRISH

         Appeal from the Criminal Court for Shelby County No. 90-05606, 90-12109, 90-12110, 90-12111 Paula L. Skahan, Judge

         The Appellant, Alex Parrish, appeals from the trial court's denial of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The State has filed a motion requesting that this court affirm the trial court's judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant the State's motion and affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

          James Gulley, Memphis, Tennessee, for the appellant, Alex Parrish.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin Ball, Assistant Attorney General; Amy Weirich, District Attorney General; and Pamela Stark, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which CAmille R. McMullen and J. Ross Dyer, JJ., joined.

          MEMORANDUM OPINION

          ALAN E. GLENN, JUDGE.

         On August 23, 1990, the Appellant pled guilty to the sale of a controlled substance and received a sentence of 7.2 years. Later on December 4, 1990, the Appellant pled guilty to a three count indictment of one count of robbery and two counts of aggravated robbery. Under this December 4, 1990 plea, the Appellant was sentenced to six (6) years for the offense of robbery and eleven (11) years for each aggravated robbery offense with all sentences to run concurrently with each other. Even though the Appellant was out on bond for the initial sale of a controlled substance charge when arrested for the robbery and aggravated robbery charges, all four sentences were ordered to be served concurrently with one another giving the Appellant an effective sentence of eleven (11) years from December 4, 1990.

         On July 11, 2014, the Appellant filed a pro se motion to correct illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The basis for the motion of the Appellant was the alleged illegality of the concurrent sentences received for the aforementioned charges. The Appellant argues that the concurrent sentences he received were illegal since he was out on bond for the charge of the sale of a controlled substance when he was arrested for the robbery and aggravated robbery charges. As a result, the Appellant claims the sentences for the two separate sets of indictments were statutorily required to be served consecutively rather than concurrently. See Tenn. Code Ann. §40-20-111(b). He maintains that because the sentences are concurrent rather than consecutive they are illegal and therefore his guilty plea should be set aside.

         Upon receipt of the motion, the trial court appointed counsel to represent the Appellant. On March 9, 2016, the trial court entered an order denying the motion to correct illegal sentence finding that the sentences had expired prior to the filing of the motion. The Appellant timely appealed the dismissal of his motion to this Court.

         Tennessee Rule of Criminal Procedure 36.1, in effect at the time of filing, provides the following mechanism for seeking the correction of an illegal sentence:

(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 ...

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