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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

RICHARD MADKINS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 94-00771; P-26449 Joseph B. Dailey, Judge

No. W2003-02937-CCA-R3-PC - Filed October 8, 2004

The Appellant, Richard Madkins, appeals the trial court's imposition of a twenty-five-year

sentence for the offense of especially aggravated kidnapping after remand by the post-conviction

court. The State has filed a motion requesting that this Court affirm the trial court's denial of

relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the State's motion

and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of

the Court of Criminal Appeals

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS AND

ALAN E. GLENN, JJ. joined.

Richard Madkins, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General,

for the appellee, the State of Tennessee.

MEMORANDUM OPINION

Appellant was convicted by a Shelby County jury of especially aggravated robbery and

attempted felony murder. See State v. Madkins, 989 S.W.2d 697 (Tenn. 1999). For these

convictions, he received consecutive sentences of sixty years, as a range III offender, on each

count. Id. On direct appeal, the Appellant’s conviction for attempted felony murder was
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reversed and dismissed under State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). See Madkins,

989 S.W.2d at 698. The matter was remanded to the trial court for further proceedings, i.e., a

trial on the charge of attempted second degree murder. Madkins, 989 S.W.2d at 699.

On January 4, 2002, Appellant filed a petition for writ of habeas corpus in the Davidson

County Criminal Court, challenging the legality of 1985 convictions used to enhance his 1994

Shelby County conviction for especially aggravated robbery. By order entered April 24, 2002,

the Davidson County Criminal Court granted habeas corpus relief by finding the sentences in

case numbers 84-04503, 84-04938, 84-00678, 85-00679, 85-00680, and 85-00681 void and

remanding the matter to the Criminal Court for Shelby County for further appropriate action.

On May 14, 2002, the Appellant filed, pro se, a petition for post-conviction relief

challenging his conviction for especially aggravated robbery. As grounds for relief, Appellant

alleged that the prior convictions used to enhance this sentence had been found to be illegal by

the Davidson County Criminal Court. See Tenn. Code Ann. § 40-30-102(b)(3). The State

responded to the petition, conceding that post-conviction relief should be granted with respect to

the sentence received in case 94-00771, especially aggravated robbery. On September 19, 2002,

the Shelby County Criminal Court granted post-conviction relief in case 94-00771 as to the

sentence only. The matter was remanded to the trial court for appropriate action.

On December 12, 2002, Appellant filed a pleading captioned “Amendment to Original

Petition for Post-Conviction Relief.” In this document, Appellant expressed his objection to the

post-conviction court’s order of September 19, 2002, remanding the matter in 94-00771 for

resentencing. A second “amendment” was filed on January 24, 2003, alleging that trial counsel

was ineffective. The State responded that these “amendments” should be dismissed as timebarred and the fact that one petition had already been filed and granted. On February 21, 2003,

the post-conviction court dismissed the amendments, finding that the trial court no longer had

jurisdiction over any amendments as relief was granted on September 19, 2002, and that any

additional claims were barred by the statute of limitations. Appellant responded by filing a

“motion to alter or amend a judgment” on March 24, 2003. In this pleading, Appellant

demanded immediate release from confinement. 

On November 4, 2003, the Shelby County Criminal Court, acting under authority of the

September 19, 2002, order granting post-conviction relief, sentenced the Appellant to twenty-five

years in the Department of Correction in case number 94-00771, Appellant’s conviction for

especially aggravated robbery. Appellant filed a timely notice of appeal from the trial court’s

November 4, 2003, judgment.

In his brief, the Appellant contends that the trial court failed to comply with Rule 35(b),

Tennessee Rules of Criminal Procedure. Specifically, the Appellant contends that, since the trial

court failed to act within 120 days of the post-conviction court’s September 19, 2002, order, the

trial court was without jurisdiction to resentence the Appellant. The State responds that the time
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frame imposed by Rule 35, Tennessee Rules of Criminal Procedure, is limited to the time in

which a defendant may petition the court to reduce the sentence imposed.

Initially, we note, as observed by the State, the Appellant does not challenge any other

aspect of his twenty-five-year sentence nor has he included a transcript of the sentencing hearing

of November 4, 2003. In this regard, he has waived all other challenges to the twenty-five-year

sentence imposed by the trial court. See Tenn. R. App. P. 24(a), (b). Moreover, we find the

State’s position as to the inapplicability of Rule 35 is well-taken. Rule 35, Tennessee Rules of

Criminal Procedure, enables the trial court to maintain jurisdiction over a matter to permit

modification of a sentence if such application for modification is filed within 120 days after the

sentence is imposed. Nothing in this rule requires a trial court to act within 120 days after a case

is remanded for resentencing nor do we construe the Rule as requiring the same. 

The Appellant has failed to establish that he is entitled to relief. Nor has he established

that the trial court acted illegally in not resentencing him within 120 days of the September 17,

2003, order. Accordingly, it is ordered that the State’s motion is granted. The judgment of the

trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. 

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DAVID G. HAYES, JUDGE