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### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON
RIC HAR D M AD KINS v. S TAT E OF TEN NES SEE Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty No. 94-00771; P -26449 Joseph B. Dailey, Jud ge

No. W2003-02937-C CA-R 3-P C - F iled October 8, 2004

The Appe llant, Richard Madkins, appe als the trial court's imposition of a twenty -five- y ear sentenc e for

the offe nse of e specia lly

ag g ravated kidnapping afte r re mand by the post-conviction court. The State has filed a motion requesting that this Court affirm the trial c ourt' s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appea ls. W e g rant the State' s motion a nda ff irm th e jud g me nt o f the low e r c ou rt
. Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed P ursuan t to Rule 20, Rules of th e Co ur t o f Cr im ina l A ppe als D AVI D G. H AYES , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS AND A L AN E. G L EN N , J J . joined. Richard Ma dkins, pro se. Paul G . Su mme rs , A tto rn e y Ge ne ra l & Re po rt e r; Mic ha e l Ma rk ha m, A ssi stant A tto rn e y

Ge ne ra l, for the a ppellee, the State of Tenne ssee.

M EM OR AN DU M OP IN ION Appellant wa s convicted by a Shelby Countyjury

of espe cially

ag g ravated robbe ry

and attempted fe lony

murder. See State v. Madk ins , 9 89 S.W. 2d69 7 ( Te nn . 1 99 9) . F or the se convictions, he re ceive d consec utive sentenc es of sixt y y ear s, as a r ang e I I I

offe nder, on e ach count. Id. On direc t appea l, the Appellant’s c onviction for attempted f elony murder w as2

reve rsed and dismiss ed under State v. Kimbrough , 924 S.W .2d 888 (Tenn. 1996)

. See Madkins , 989 S.W .2d at 698. The matter wa s remande d to the trial court f or further proc eeding s, i.e. , a trial on the cha

rg e of attempted second de g ree murder. Madkins , 989 S.W .2d at 699. On J anuary

4, 2002, Appellant filed a petition for writ of ha

beas c orpus in the Davidson CountyCriminal Court, challeng ing the leg ality of 1985 convic tions used to enhance his 1994 Shelby Countyconviction for e specia lly ag g ravated robbe ry . By

order enter ed April 24, 2002, theDa vid so n Co un ty

Cr imi na l Co urt g rante d h abe a s c or pu s r e lie f b y

fi nd ing the se nte nc e s in case numbers 84-04503, 84- 04938, 84-00678, 85-00679, 85- 00680, and 85-00681 void a nd rema nding the matter to the Criminal Court for Shelby Countyfor f

urther a ppropriate action. On May 14, 2002, the Appellant f iled, pro se, a

petition for post-conviction re lief challeng ing his c onviction for espe cially ag g ravated robbe ry . As g rounds for r elief, A ppellant alleg ed that the prior convictions used to enhance this sentenc e had be en found to be illega l by the Davidson County

Criminal Court. See Te nn . Co de An n. § 4 0- 30 -1 02 (b )( 3) . T he State re sp on de d to thepe tit ion , c on c e din g that po st- c on vic tio n r e lie f s ho uldbe g rante d w ithre sp e c t to the sentenc e re ceive d in case 94-00771, espe cially ag g ravated robbe ry . On September 19, 2002, the Shelby

CountyCriminal Court granted post-conviction re lief in ca se 94-00771 a s to the sentenc e only . The matter was re manded to the tria l court for appropriate ac tion. On Dec ember

12, 2002, Appellant filed a pleading captioned “ Amendment to Orig inal Petition for Post -Conviction Relief.” In this document, Appellant expressed his objec tion to the post-conviction court’s order of September

19, 2002, rema nding the matter in 94-00771 f or rese ntencing . A sec ond “ame ndment” wa s filed on J anuary 24, 2003, alleg ing that trial counsel was inef fec tive. The State re sponded that these “ amendments” should be dismissed as timebarr ed and the fac t that one petition had alre ady been f iled and g rante d. On Fe bruary 21, 2003, the post-conviction court dismi ssed the ame ndments, finding that the trial court no long er ha d jurisdiction over any

amendments a s relief

was g rante d on September 19, 2002, and that any ad d i t i o n al cl ai m s we re b arre d b y t h e s t at u t e o f l i m i t at i o n s . Ap p el l an tre s p o n d ed b y fi l i n g a “motion to alter or amend a judg ment” on Mar ch 24, 2003. In this pleading , Appellant demande d immediate re lease from conf inement. On Novembe r 4, 2003, the Shelby CountyCriminal Court, acting unde r authority of the September 19, 2002, or der g ranting post-conviction re lief, sentenc ed the Appe llant to twenty -five y ear s in the Depa

rtment of Corre ction in case number 94-00771, A ppellant’s convic tion for espec ially ag g ravated robbe ry . Appellant filed a timely notice of a

ppeal f rom the trial court’s No ve mbe r 4 , 2 00 3, jud g me nt. I n his brief, the A ppellant contends that the trial court f ailed to comply

with Rule 35(b), Tenne ssee Rules of Criminal Proce dure. Spec ifically , the Appellant c ontends that, since the trial court failed to act within 120 day s of the post-convic tion court’s September 19, 2002, order , the tria l c ou rt wa s w ith ou t ju ri sd ic tio n to re se nte nc e the Ap pe llant. Th e State re sp on ds that th e tim e3

fr a me imp os e d b y

Rul e 35 , T e nn e sse e Rul e s o f C ri min a l Pr oc e du re , is lim ite d to the tim e in which a de fendant may

petition the court to reduc e the se ntence imposed. I nitially , we note, a s observe d by the State, the Appe llant does not challeng e any other aspec t of his twenty -five- y ear sentenc e nor ha s he included a transcript of the sentenc ing he aring of Nove mber 4, 2003. In this reg ard, he has wa ived all other c halleng es to the twenty -five- y ear sentenc e imposed by

the trial court. See Tenn. R. App. P. 24(a) , (b). More over, w e find the State’s position as to the inapplicability of Rule 35 is well-take n. Rule 35, Tennesse e Rules of Cr imi na l Pr oc e du re , e na

ble s th e tr ia l c ou rt

to m a int a in j urisd ic tio n o ve r a ma tte r t o p e rm it modification of a se ntence if such application for modification is filed within 120 day s after the se nte nc e is i mpo se d. No thi ng in this ru le re qu ir e s a tr ia l c ou rt

to a c t w ith in 1 20 day s a ft e r a c a se is remande d for r esente ncing nor do we construe the Rule as re quiring the same. The Appe llant has failed to e stablish that he is entitled to relief. Nor has he e stablished that the trial court acted illeg ally in not resentenc ing him within 120 day s of the September 17, 2003, order . Acc ording ly , it is ordered that the State’s motion is gra nted. The judg ment of the trial court is af

firmed in ac cordance w ith Rul e 20, Rules of the Court of Criminal Appe als.

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### DAVID G. H AYES, JUDGE