# FILED
May 7, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT JACKSON APRIL 1997 SESSIO N

STATE OF TENNESSEE, ) ) Appellee, ) No. 02C01-9502-CR-00051 ) ) Shelby County v. ) ) Honorable L. T . Lafferty, Ju dge ) ELWIN SOUTH, ) (Motion for Reduction of Sentence) ) Appellant. ) For the Appellant : For the Appellees : Elwin N. South, Sr., Pro Se Charles W. Burson L.C.R.C.F. Rt. 1, Box

330, Attorney General of Tennessee Tiptonville, TN 38079 and Ellen H. Pollack Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 John W. Pierotti, Jr. District Attorney General 201 Poplar Avenue Memphis, TN 38103-1947

OPINION FILED:____________________
REVERSED AND REMAND ED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Elwin South, appeals as of right from the Shelby County Criminal Court’s ord er denying his motion for reduction of sentence. Pursuant t o guilty pleas, the defendant was convi cted of three counts of attempted aggr avated rape, a Class B felony, and sentenced to three concurrent eight -year terms of confinement. The issue presented for our rev iew is whether the trial court erred by denying the defendant’s motion for reduction of sentence because it was untimely filed. The
un de rl yi ngqu esti on in th is ap pe al is

wh en di d t he

de fe nd an t f il e h is

moti on . We reverse the trial c

ourt and remand the case for recons ideration in light of thi s opinion.
The defendant’s sentences were impos ed on August 12, 1993, with the trial court denying

any type of alternativ

e sentencing. The defendant filed a motion to reduce his sentences, alleging serious medical problems, including prostate cancer, and the need to support his wife, given the fact that his social security i ncome ended while he was in pr

ison.

Pursuant to Rule 35, Tenn. R. C rim. P., a trial court has the authority to reduce a defendant’s sentence “upon appl ication filed within 120 days after the date the sentence is imposed . . . .” The Commit tee Comment to

the rule st

ates that the

time period may not be tolled or extended. However, we believe that the t rial court records and the appellate court recor ds in this case, of whic h we take judicial noti ce, indicate that the problems in this case may not be of the def endant’s doing so that justice could require consideration of the merits of his motion by the trial court. See State v. Darrell Tipton , No. 03C0 1-9305- CR-00142 , Carter Co unty, slip op. at 2 (T enn. Crim . App. Nov. 22, 1993) (“It would be a travesty of justice to hold a pro se appellant . . . accountable for an oversight, in the office of the Court Clerk, not of his do ing.”)3 On May 9, 1996, nunc pro nunc to March 8, 1995, the trial court entered an order stating that it denied the defendant’s Rule 35 motion on March 8, 1995, without a hearing becaus e the motion was untimely filed and the trial court di d not otherwise have jur

isdiction over the defendant. The order stated that the Shelby County Criminal Court Clerk “apparently failed to notify the petitioner of the Court ruling.” The trial court acknowledged that the defendant claims his motion was filed in November 1993, but it concl uded that “the Clerk’s r ecords reflect the motion w as received in that office on February 20, 1995, and form ally filed on February 22, 1995.” Appendix A to the order inc ludes a copy of the defendant’s motion marked “FILED 2- 22-95" by a deputy court clerk and a copy of an enve lope cover reflecting a mailing from the defendant to the trial court c lerk’s office and containing a postal stamp dated “FEB 20 ‘95" and another stamp stating, “DELIVERED FEB. 21 1995 .”

The defendant filed a motion to reconsider in which he alleged that he mailed his Rule 35 motion by registered/certified mai l on November 24, 1993, and that the trial court clerk

’s office received it on N ovember 29, 1993, well w ithin the 120-day limit. He attached a copy of a registered/certified mail receipt that refle cts that an article addressed to “Ms. Miner va Johnican Clerk, 201 Poplar Ave., Mphs., TN. 3 8103” was received by a person under the signature of “Gaines Crim. Court Clerk.”

We also note that the defendant’s signature on h is Rule 35 motion was not arized on November 24, 1993. The trial court denied the motion to reconsider for the sa me reason that it denied the motion for reduction.

On appeal, the defendant continues to ass ert that his motion was fil ed timely. He argues that he has diligently pursued his motion and that he shoul d not be penalized for circumstances outside of his control. In r esponse, the state counters w ith basic arguments. It simpl y says that the motion w as filed on February 22, 1995, thereby being outside the 120-day limitation. It

then argues that even if the motion4

were timely, the tr

ial court was authori zed to exercise its discretion in denying

the motion without a hearing and the petitioner has not shown that the interest of justice would be served by

modifying his sentences.

We be lieve that the state ’s argume nts are un convincin g. First, we question the trial cour

t’s determination of disputed facts without the benefit of an evidentiary hearing . When the defendant alleges that he has timely filed the motion and produces supporting document s that on their face reflect a ti mely filing, the trial court should not resolv e a contested factual issue without giving the pa rties an opportunity to present thei r respective cases.

In any event, we are inclined to believe that the defendant’s claims are supported by the records before this court. Aside from the da te of the defendant’s notarized signature on

the motion and the date on the regi stered/certified mail recei pt, our court’s records reflect that it is highly improbable that the defendan t submitted his Rule 35 motion in February 1995. On February 23, 1995, the appellate cou rt clerk in Jackson marked as filed a pleadi ng styled Applicati on for Audita Querela Writ of Certiorari that complai ns about the fact the Shelby County Criminal Court has faile d to act on his Motion for Reducti on of Sentence filed in November 1993. The documents reflect that the defendant’s signat ure on the pleading was notarized on February 17, 1995. The Application’s attachments include the defendant’s Motion for Reduction of Sentence and a copy of the November 29, 1993, registered/cer tified mail receipt. The Application also includes a claim by the defendant that he i nquired by letter i n 1994 about the status of his motion. The Appl ication seeks to requir e the trial court to act on the merits of the defendant’s motion.

In other words, the timi ng of the Application filed w ith this court and its allegations do not lend themsel ves easily in suppor

t of the trial court’s conclusion that1 At the rel evant ti mes for this case, Rule 49(c), Tenn. R. Crim. P., provided i n part: “ The cler k shall endor se upon every pl eading and othe r papers fi led wit h the cler k in a proceedi ng the date and hour of the f ili ng.” This r eflects t hat the recei pt of the pl eading by t he clerk consti tutes the f ili ng and not the cl erk’s endorsement of t he date and ti me. 5 the defendant’s Rule 35 motion was first received in the t rial court clerk’s office on February 20, 1995. Moreo ver, as previousl

y indicated, if the defendant’s pl eadings and exhibits in the trial

court are taken as true, the n he has shown that he filed his motion on Novemb er 29, 199 3, when th e register ed/certi fied ma il receipt was signed b y a deputy clerk. 1 What happened with the motion after that would not be of the defendant’s doing. In any ev ent, the record is such that we believe that a dis missal for untimeliness wou ld have to result f rom further he aring.

As for the state’s claim that the defendant has made no showing that the interests of justice wo uld be served by a sent ence reduction, we do not bel ieve it is our obligation to undertake that analysis. First, it was never underta ken by the trial court , the forum with the primary authority and duty to ac t on the merits of the Rule 35 motion

. Its discretion relativ

e to such a motion, though, does no t include not acting on the merits. Second, the records before us are insufficient to w arrant a ruling either

way. In fact, save the Ru le 35 motion an d subsequent pl eadings, none o f the case plea dings and papers that are requir ed to be sent as part of the record on appeal, seeT.R.A.P. 25(a) and (b), are before us. Thus, the trial court, being aware of the circumstances of the cases in which the defendant seeks relief, remains the bes t forum at this time to assess the relative mer its of the defendant’s motion.

In conclusion, we hold t hat the trial court should not have dismissed the defendant’s Rule 35 motion for untimeli ness under the record before us. If the issue of timeliness is still contested, the trial court has the authority to conduct an appropriate hearing for resolution of the matt er. If such a hearing is unnecessary, the trial court6

shall rule on the merits of the defendant’s Rule 35 motion. The order of the trial court is reversed and the case is remanded for reconsideration i n light of this opinion.

_____________________________ Joseph M. Tipto n, Judge CONCUR:

____________________________ David G. Hayes, Judge

____________________________ William M. Barker, Judge