State of Tennessee v. Travis Ware - Dissent

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 5, 2015
• Docket: E2014-02172-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 25, 2015

STATE OF TENNESSEE v. TRAVIS WARE

Appeal from the Criminal Court for Bradley County

Nos. 95064, 95036, 96256, 96256, 96257 Sandra Donaghy, Judge

No. E2014-02014-02172-CCA-R3-CD-FILED-AUGUST 5, 2015

NORMA MCGEE OGLE, J., dissenting.

I respectfully disagree with the majority’s conclusion that a petitioner is not entitled to

seek relief under Rule 36.1 when his sentence has been fully served. “On its face, Rule 36.1

does not limit the time within which a person seeking relief must file a motion, nor does it

require the person seeking relief to be restrained of liberty.” State v. Donald Terrell, No.

W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8,

2014). This court has repeatedly quoted with approval the following language from the concurring in results only opinion written by Judge Woodall and joined by Judge Glenn in

State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *3-4 (Tenn.

Crim. App. at Knoxville, Dec. 26, 2014):

Rule 36.1 was promulgated and adopted by the Tennessee

Supreme Court in an order filed December 18, 2012, and Rule

36.1 was subsequently “ratified and approved [by the Tennessee

General Assembly] by House Resolution 33 and Senate

Resolution 11.” Compiler’s Notes, Tenn. R. Crim. P. 36.1. This

rule, authored by our supreme court and ratified and approved

by the Tennessee General Assembly, begins with the following

clear and unambiguous words:

Either the defendant or the state may, at any time,

seek 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.

Tenn. R. Crim. P. 36.1(a) (emphasis added).

-2- To me “at any time” means what it says, whether before

or after sentences have been fully served. If our supreme court

had intended for Rule 36.1 relief to not be available when the

challenged sentences have been fully served, that specification

would have been clearly stated. If the General Assembly had

desired the restriction in the rule, one or both houses of the

General Assembly would have refused to ratify and approve

Rule 36.1 as it is written.

It is my respectful opinion that even if (1) I disagree with

some or all of Rule 36.1’s provisions, and (2) I believe the

consequences of the rule can ultimately and unfairly lead to trial

courts in Tennessee vacating decades’ old convictions, as a

judge on an intermediate appellate court I must apply the plain

meaning of Rule 36.1.

See State v. Nickelle N. Jackson, No. W2014-02445-CCA-R3-CD, 2015 WL 4241074, at *6

(Tenn. Crim. App. at Jackson, July 14, 2015); Marcus Deangelo Lee v. State, No. W2014-

00994-CCA-R3-CO, 2015 WL 2330063, at *3 (Tenn. Crim. App. at Jackson, May 13, 2015).

I agree with Judge Woodall’s eloquent analysis. I would also note that in the instant -3- case, the trial court’s order contains a specific finding that the petitioner was on bail at the

time he committed the offense. Accordingly, in the instant case, I would remand the case to

the trial court for appointment of counsel and a hearing on the petitioner’s motion.

_________________________________

NORMA MCGEE OGLE, JUDGE

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