### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs S eptember

19, 2001
MARTIN E. WAL KER v. STATE OF T ENNESSEE
Appeal from the Criminal Court for Davidson County No. 84-S-1157 J. Randall Wyatt, Jr., Judge

No. M2001-00328-CCA-R3-CO - Filed April 5, 2002

The petitioner, Martin E. Walker, appeals the trial court's dismissal of h is motion to correct or modify his sentence. The judgment of the trial court is affirmed.

Tenn. R. App. 3; Judgment of the Trial Court Affirmed

G ARY R. W A DE , P.J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Martin E. Walker, Mountain City, Tennessee, pro se
. Paul G. Summers, Attorney General& Reporter; David H. Findley, Assistant Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee , the State of Tennessee.
OPINION

In April of 1986, the petitioner pled guilty to one count of seco nd degree murd er. In accordance

with a plea agreement, the trial court imposed a s entence of tw enty-five years. The judgment reflects that the sentence is consecutive to a life sentence the petitioner received in 1985. In August of 2000, the petitioner filed an application for a delayed appea l, claiming that the state had agreed to concurrent rather than consecutive te rms. The appeal was denied. See Tenn. R. App. P. 13(c); Givens v. State , 702 S.W.2d 578, 579 ( Tenn. Cri m. App. 1985) (holding that this court may take judicial notice of its records on file). The petitioner then filed a “Petition to Correct or Modify Void Sentence” in the trial court. The trial court dismissed the petition, ruling that Rule 35 of the Tennessee Rules of Criminal Procedure and Tennessee Code An notated s ection 40-35-212 prohibited modification of the sentence. This appeal followed the dismissal.

There are three po ssible pro cedure s for alte ring, modi fying, or

correc ting a sen

tence. Fi rst, Tennessee Code Annotated section 40

- 35-212 governs the jurisdiction of trial courts in the imposition of

sentenc es. While

trial cou rts reta in full jurisdiction over defendants awaiting transfer-2-

to the Depa

rtment of Correct ion, inclu ding those

being housed in a local jail or workhouse, that jurisdiction continue s only until “ the defe ndant is actually

transfe rred to the physical custody of the department.” Tenn. Code Ann. § 40- 35-212(d ); see also State v. Bowling , 958 S.W.2d 362 (Tenn. Crim. App. 1997). The judgment of a trial court becomes final 30 days after entry, abse nt a timely notice of appeal or an appropriate post-trial motion. See Tenn. R. App. P. 4. When the judgment is final, the trial court generally loses jurisdiction to alter or amend. Ray v. State , 576 S.W.2d 598, 602 (Tenn. Cr

im. App. 19 78); State v. Bouchard , 563 S.W.2d 561, 563-64 (Tenn. Cr im. App. 1977). When a motion to correct or reduce is filed within 120 days after the sentence is imposed, Rule 35(b)
o f the Tenn essee Ru les of Cri minal Proc edure of fers a s econd po ssible re

medy, qua

lif ying as a n exception to the statutory limitations. See State v. Biggs , 769 S.W.2d 506, 509 (Tenn. Crim. App. 1988). Finally, "[a]s a general rule, a trial judge may c orrect an illegal, as opposed to an erroneous sentenc e, at any

time." State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978).

Rule 3(b) of the Tennessee Rules of Appellate Procedure does not recognize a direct appeal of a dismissal of a m otion to cor rect an illegal sentence, the method of attack utilized by the petitioner in this instance. In the interests of justice, however, an order denying a petition to correct an illegal sentence may be treated by this court as a pe tition for writ of

certior ari. State v. D onald Ree Jones , No. M2000-00381-CCA-R3-CD (Tenn. Crim. App., at Nashv ille, Oct . 13, 2000) ; see also Statev. Leath , 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). In State v. Reliford , No. W1999- 00826-CCA -R3-CD (Tenn. Crim. App., at Jackson, Oct. 2, 2000), for example, this court treated an improper appeal of a

motion to correct

an allegedly illegal sentence as a common law petition for writ of certiorari because the asser ted claim was that the trial court had “‘exceeded the jurisdiction conferred, or

[was] a cting ille gally, when, in

the judgment of the court, there [was] no other plain, speedy, or adequate remedy.’”
Here, the petitioner argues that the i mposition of consecu tive sente

nces viol ated his contractual agreement with the state. As to plea agreements, contrac t principl es have l imited applicability. See State v. Howington , 907 S.W.2 d 403, 407 (Tenn. 199 5); see also Statev. Brown , 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996) (“[A] judgment of conviction is not a contract, and principles of contract law do not apply.”). A sentence is illegal if it directly contravened a statute in existence at the time it was imposed. Taylor v. State , 995 S.W.2d 78, 85 (Tenn. 1999). Notably, neither the plea agreement nor the ju dgment ap

peared in the record originally filed withthis court. In order to pr ovide a complete review, this court directed that the re cord be supplemented to include the documents necessar y for a full consideration. See Tenn. R. A pp. P. 24 (e). The record, as supplemented, establishes two important facts. First, the judgment and t h e Petition to Enter Plea of Guilty signed by the pet itioner do cument th at, contr ary to his assertions, the twe nt y-five year sentence is to be served consec utively to the 1985 life sentence. Moreover, the transcript of the petitioner’s guilty plea establishes that the petit ioner was made aware that the sentences woul d be serve d consecutively. Finally, consecutive sentences in this instance do not contravene any statute in e xistence at the time of their imposition. The interests of justice, under these circumstances, do not warrant the treatment of the order denying the petitione r’s motion

as a-3-

petition for writ of certiorari. In our view, the trial c ourt correctly con cluded that it was without cause or authority to either modify or correct the c onsecutive, twenty-five year sentence.-4-

Accordingly, the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE