IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 21, 2024

STATE OF TENNESSEE v. DAN E. DURELL

Appeal from the Criminal Court for Knox County

Nos. 29089, 29090 Steven Wayne Sword, Judge

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No. E2023-01229-CCA-R3-CD

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Petitioner, Dan E. Durell, filed a “Motion for Correction of Sentencing Documents” (“the 

Motion”), claiming that the judgments in Case Nos. 29089 and 29090 did not conform to 

the trial court’s pronounced sentence, and as a result, his sentences were illegal. The trial 

court treated the Motion as a motion to correct an illegal sentence pursuant to Tennessee 

Rule of Criminal Procedure 36.1. The court determined that the Motion failed to raise a 

colorable claim and summarily dismissed the Motion. Discerning no error, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and TIMOTHY L. EASTER, JJ., joined.

Dan E. Durell, Sandstone, Minnesota, Pro Se.

Jonathan Skrmetti, Attorney General and Reporter; Raymond J. Lepone, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

In the late 1980s, Petitioner was one of several defendants prosecuted in federal 

court for crimes related to a Racketeer Influenced and Corrupt Organizations (RICO) 

investigation. As a result of the federal investigation, it was discovered that Petitioner 

participated in the April 1986 robbery and shooting of a Knoxville physician. See Durell 

v. State, No. E2022-01541-CCA-R3-HC, 2023 WL 4489453, at *1 (Tenn. Crim. App. July 

12, 2023). On June 9, 1988, Petitioner pleaded guilty in the Knox County Criminal Court 

07/03/2024
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to armed robbery (Case No. 29090) and first degree burglary (Case No. 29089). State v. 

Durrell, No. 1213, 1989 WL 75727, at *1 (Tenn. Crim. App. July 11, 1989). Following a 

sentencing hearing, the trial court sentenced Petitioner, as a Range II especially aggravated 

offender, to life in Case No. 29090 and to ten years in Case No. 29089. The trial court 

ordered the Tennessee sentences to be served concurrently with each other but 

consecutively to the sentence in Case No. 86-03288CFAWS in the Circuit Court for the 

Sixth Judicial Circuit of Florida (“the Florida case”). This court affirmed the consecutive 

alignment of the sentences in the direct appeal. Id. at *5.1 

Motion for Correction of Sentencing Documents

On July 31, 2023, Petitioner filed the Motion, asking the trial court to correct the 

judgments in Case Nos. 29089 and 29090 to reflect “the oral pronouncement of sentencing”

imposed by the trial court on July 5, 1988. Petitioner claimed that enforcement of a 

judgment that departed from the pronounced sentence “clearly shows that [Petitioner] is 

serving a[n] illegal sentence[.]” Attached to the Motion were selected pages from the July 

5, 1988 sentencing hearing, during which the trial court made the following statement 

concerning Case No. 29090: 

For this offense you shall be sentenced to life imprisonment. This 

[s]entence will be served consecutively to the case out of Pasco County, 

Florida, the Sixth Judicial District, case number 86-03288CFAWS. It is my 

understanding that the sentence out of Pasco County, Florida, is consecutive 

to the sentence you received in the Federal District Court in case number 

86271CRT17, United States District Court for the Middle District of Florida, 

the Tampa Division.

I want this judgment to reflect that I am considering that this -- that it 

is consecutive to -- this sentence will be consecutive to both of those 

sentences.

Attached to the Motion was a copy of the July 5, 1988 judgment in Case No. 29089,

showing that the ten-year sentence would be served concurrently with the sentence in Case 

No. 29090 and a copy of Minute Book 135, Page 162, stating that the sentence for Case 

No. 29090 “shall be served consecutively to the sentence imposed in Pasco County, Florida 

6th Judicial Circuit case No. 86-03288CFAWS.” The record on appeal does not include a 

 

1 According to the trial court’s oral pronouncement at the sentencing hearing, the sentence in the 

Florida case was to be served consecutively to the sentence in Case No. 86-271-CR-T-17 in the United 

States District Court, Middle District of Florida, Tampa Division (“the federal case”). 
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copy of the judgment for Case No. 29090. Also attached to the Motion was a July 11, 1988 

document titled “Corrected Conviction” for Case No. 29090 signed by the Knox County 

Criminal Court Clerk, showing that the life sentence would be served consecutively to 

“Case No. 86-03299CFAWS imposed in Pasco Co., FL. 6th Judicial Circuit.” The correct 

case number should have been 86-03288CFAWS, not 86-03299CFAWS. This appears to 

be a clerical error. 

The trial court treated the Motion as a motion to correct an illegal sentence pursuant 

to Tennessee Rule of Criminal Procedure 36.1. The court found that “the judgments are 

valid on their face and reflect legal sentences for the offenses of which [Petitioner] was 

convicted.” The court determined that the Motion failed to raise a colorable claim under 

Rule 36.1 and summarily dismissed the Motion. Petitioner timely appealed.

Analysis

The brief and reply brief filed by Petitioner fails to comply with the requirements of

Tennessee Rule of Appellate Procedure 27(a), which requires: 

(a) Brief of the Appellant. The brief of the appellant shall contain 

under appropriate headings and in the order here indicated:

(1) A table of contents, with references to the pages in the brief;

(2) A table of authorities, including cases (alphabetically arranged), 

statutes and other authorities cited, with references to the pages in the brief 

where they are cited;

(3) A jurisdictional statement in cases appealed to the Supreme Court 

directly from the trial court indicating briefly the jurisdictional grounds for 

the appeal to the Supreme Court;

(4) A statement of the issues presented for review;

(5) A statement of the case, indicating briefly the nature of the case, 

the course of proceedings, and its disposition in the court below;

(6) A statement of facts, setting forth the facts relevant to the issues 

presented for review with appropriate references to the record;

(7) An argument, which may be preceded by a summary of argument, 

setting forth:
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(A) the contentions of the appellant with respect to the 

issues presented, and the reasons therefor, including the 

reasons why the contentions require appellate relief, with 

citations to the authorities and appropriate references to the 

record (which may be quoted verbatim) relied on; and

(B) for each issue, a concise statement of the applicable 

standard of review (which may appear in the discussion of the 

issue or under a separate heading placed before the discussion 

of the issues);

(8) A short conclusion, stating the precise relief sought.

Petitioner’s brief consists of a statement of the disposition in the court below, an 

argument, and a conclusion. Where an appellant fails to prepare a sufficient brief in 

compliance with the Rules of Appellate Procedure, this court may treat the issues as 

waived. The brief does not have a statement of the issues presented for review. “[A]n 

issue may be deemed waived when it is argued in the brief but is not designated as an issue 

in accordance with Tenn. R. App. P. 27(a)(4).” Hodge v. Craig, 382 S.W.3d 325, 335 

(Tenn. 2012). Even though not designated as an issue, Petitioner argues that the trial court 

erred by summarily dismissing his “Motion for Correction of Sentencing Documents” for 

failure to state a colorable claim. We choose to address that issue rather than treat it as 

waived. 

Tennessee Rule of Criminal Procedure 36.1 allows a defendant or the State to seek 

correction of an illegal sentence. As provided in Rule 36.1, an illegal sentence is “one that 

is not authorized by the applicable statutes or that directly contravenes an applicable 

statute.” Tenn. R. Crim. P. 36.1(a)(2); see State v. Wooden, 478 S.W.3d 585, 594 (Tenn. 

2015). “[A] Rule 36.1 motion must include factual allegations concerning the basis of the 

illegal sentence claim in order to state a colorable claim for relief.” Wooden, 478 S.W.3d

at 593. Under Rule 36.1, a colorable claim is “a claim that, if taken as true and viewed in 

a light most favorable to the moving party, would entitle the moving party to relief[.]” Id. 

Whether a Rule 36.1 motion states a colorable claim for correction of an illegal sentence is 

a question of law which this court reviews de novo. Id. at 598. 

In this case, as the trial court correctly determined, “the judgments are valid on their 

face and reflect legal sentences for the offenses of which [Petitioner] was convicted.” We,

therefore, affirm the trial court’s summary dismissal of the Motion.

Petitioner argues that he “has never been involved in Case No. 86-03299CFAWS” 

and that the “clerk’s clerical errors created such a[n] aggressive fatal error so profound as 
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to render [Petitioner’s] sentence in this case before the court illegal and void.” As the State 

pointed out in its brief, Petitioner “conflate[s] a request for correction of alleged errors in 

the judgment forms with a claim that he is serving an illegal sentence.” There is a clerical 

error in the July 11, 1988 document titled “Corrected Conviction” for Case No. 29090,

which was signed by the clerk and which shows that the life sentence in Case No. 29090 

is to be served consecutively to “Case No. 86-03299CFAWS imposed in Pasco Co., FL.

6th Judicial Circuit.” The correct case number, and the case number referenced by the trial 

court when the sentence was imposed, was 86-03288CFAWS not 86-03299CFAWS.

 

“[M]istakes in sentencing are inevitable, but few sentencing errors render sentences 

illegal.” Id. at 595. “Sentencing errors fall into three categories—clerical errors, 

appealable errors, and fatal errors.” Id. Clerical errors “arise simply from a clerical mistake 

in filling out the uniform judgment document” and may be corrected at any time under 

Tennessee Rule of Criminal Procedure 36. Id. Appealable errors are errors “for which the 

Sentencing Act specifically provides a right of direct appeal.” Id. Only fatal errors render 

the sentence illegal and void. Id. (citing Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 

2011)). Imposition of a sentence “that is not authorized by the applicable statutes or that 

directly contravenes an applicable statute” is a fatal error. Id.; see Tenn. R. Crim. P. 

36.1(a).

If the clerical error in the July 11, 1988 “Corrected Conviction” also appears in the

judgment of conviction or a corrected judgment of conviction for Case No. 29090, then the

clerical error may be corrected at any time pursuant to Tennessee Rule of Criminal 

Procedure 36. 

Conclusion

The judgment of the trial court summarily dismissing the Tennessee Rule of 

Criminal Procedure 36.1 motion is affirmed.

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ROBERT L. HOLLOWAY, JR., JUDGE