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State v. Pearce

Court of Criminal Appeals of Tennessee, Jackson

October 31, 2019

STATE OF TENNESSEE
v.
JIMMY LEE PEARCE, JR.

          Assigned on Briefs September 4, 2019

          Appeal from the Circuit Court for Fayette County No. 13-CR-134 J. Weber McCraw, Judge.

         The pro se Defendant, Jimmy Lee Pearce, Jr., appeals the Fayette County Circuit Court's dismissal of his motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. After review, we affirm the judgment of the trial court.

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

          Jimmy Lee Pearce, Jr., Somerville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant Attorney General; Mark E. Davidson, District Attorney General; and Falen Chandler, Assistant District Attorney General, for the appellee, State of Tennessee.

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

          OPINION

          ALAN E. GLENN, JUDGE.

         FACTS

         On July 22, 2013, the Defendant was indicted for possession of more than .5 grams of cocaine with intent to deliver, two counts of assault, evading arrest, and resisting arrest. On December 2, 2013, he pled guilty to the lesser offense of possession of less than .5 grams of cocaine with intent to deliver, and to the other offenses as charged. That same day, the trial court imposed an effective eight year sentence of probation, to be served consecutively to the sentence from another conviction.

         On October 27, 2015, a violation of probation report was filed against the Defendant, alleging that he had tested positive for marijuana on three separate occasions. The Defendant stipulated to the violation and was reinstated to probation. On October 21, 2016, a second violation of probation report was filed against the Defendant, alleging that he had been charged with seven new offenses, failed to report, possessed illegal substances, and posed a threat to society. On October 30, 2017, the trial court entered an order revoking the Defendant's probation.

         On January 30, 2019, the Defendant filed a motion to correct an illegal sentence in which he alleged that the trial court erred in revoking his probation because the probationary period, which was ordered to be served consecutively to another sentence, had not yet started. On January 31, 2019, the trial court entered an order denying the Defendant's motion on the ground that his sentence was not illegal.

         ANALYSIS

         The Defendant argues that the trial court erred in denying his motion to correct an illegal sentence, asserting that his sentence is illegal because the trial court revoked a probationary sentence which he had not yet begun to serve and the revocation resulted in an effective sentence of continuous ...


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