FILED

October 13, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1996

ROBERT IRWIN GWIN, ) C.C.A. NO. 02C01-9512-CR-00380

)

Appellant, )

)

) SHELBY COUNTY

VS. )

) HON. JOSEPH B. BROWN, JR.

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

D. TYLER KELLY CHARLES W. BURSON

Hardee, Martin & Jaynes, P.A. Attorney General and Reporter

213 E. Lafayette Street

Jackson, TN 38301 WILLIAM DAVID BRIDGERS

Assistant Attorney General

450 James Robertson Parkway

Nashville, TN 37243-0493

JOHN H. PIEROTTI

District Attorney General

JOHN CAMPBELL

Assistant District Attorney

3rd Floor, Criminal Justice Complex

201 Poplar 

Memphis, TN 38103

OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
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OPINION

Appellant Robert Irwin Gwin appeals from the dismissal of his petition

for post-conviction relief. On May 21, 1973, Appellant was found guilty of first

degree murder in the perpetration of a felony and was sentenced to 100 years

imprisonment. This Court affirmed the conviction in Gwin v. State, 523

S.W.2d 636, 639 (Tenn. Crim. App. 1975). In January 1979, former Governor

Ray Blanton commuted Appellant’s sentence to time served. On April 21,

1994, the Tennessee Board of Pardons and Paroles regained custody of Gwin

from the Georgia Department of Correction due to an alleged commutation

violation. On December 20, 1994, former Governor Ned McWherter revoked

the commutation thereby reinstating the original 100-year sentence. On

November 16, 1995, Appellant filed a pro se petition for post-conviction relief

which alleged that he received an unconstitutional sentence. For the reasons

stated below, we reverse and remand the judgment of the post-conviction

court.

Appellant argues that he was sentenced under a statute which was

declared unconstitutional by the Tennessee Supreme Court case of State v.

Hailey, 505 S.W.2d 712 (Tenn. 1974), and that therefore the sentence he

received was null and void. The State claims that Appellant’s petition is

barred by the statute of limitations found in Tennessee Code Annotated

Section 40-30-102 (1990) (repealed). W hile acknowledging that his petition is

well beyond the applicable three year statute of limitations, Appellant alleges

that his sentence is void and illegal and may be challenged any time.
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An analysis of Appellant’s claims requires a synopsis of the history of

Tennessee statutes governing the punishment for murder. In 1915, the

Tennessee state legislature enacted Chapter 181 of the Public Acts of 1915

(the 1915 Act) which abolished the death penalty in Tennessee and replaced it

with a mandatory sentence of life imprisonment. 1915 Tenn. Pub. Acts, Ch.

181. In 1919, the legislature adopted Chapter 5 of the Public Acts of 1919

(the 1919 Act) which provided that persons convicted of murder would be

sentenced to death, or if the jury believed that there were mitigating

circumstances, they could impose a sentence of life or some period over

twenty years. Tenn. Code Ann. § 39-2406 (1955 & 1972 replacements)

(repealed). Appellant was sentenced under this statute. In June of 1972, the

United States Supreme Court decided Furman v. Georgia, 92 S.Ct. 2726

(1972), which acknowledged certain constitutional restrictions on the

imposition of the death penalty by states. In 1973, the legislature enacted

Chapter 192 of the Public Acts of 1973 (the 1973 Act), which repealed section

39-2406 and replaced it with a new section 39-2406. 1973 Tenn. Pub. Acts,

Ch. 192, § 2. Under the new section 39-2406, a jury could sentence a person

convicted of murder to death, life imprisonment or some period over twentyfive years. In February 1974, the Tennessee Supreme Court in State v. Hailey

held that the 1973 Act was unconstitutional as it embraced more than one

subject and was broader than its title. 505 S.W.2d 712, 715 (Tenn. 1974). In

response to the Hailey and Furman decisions, the Tennessee legislature

enacted Chapter 462 of the Public Acts of 1974 (the 1974 Act) which provided

that all persons convicted of first degree murder would receive the death

penalty. 1974 Tenn. Pub. Acts, Ch. 462. In 1977, in response to several U.S.

Supreme Court cases interpreting the Fifth and Fourteen Amendments to the
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U.S. Constitution as prohibiting a mandatory death penalty, the Tennessee

Supreme Court decided Collins v. State, 550 S.W.2d 643 (Tenn. 1977), which

declared the 1974 Act unconstitutional. It also held that the invalidation of the

1974 Act revived the 1919 Act’s sentencing provisions, with the exception of

1919 Act’s death penalty provision which the Court held did not prescribe

sufficiently detailed procedures to accomplish “controlled discretion” as

required by Furman v. Georgia when a jury imposed a death sentence. 550

S.W.2d at 646. In April 1977, Chapter 51 of the Public Acts of 1977 (the 1977

Act) was enacted which again made the imposition of the death penalty

discretionary with the jury. 1977 Tenn. Pub. Acts, Ch. 51. In 1979, the

Tennessee Supreme Court decided Miller v. State, which held that life

imprisonment was the exclusive punishm ent for first degree murder for a

defendant convicted of murder before the effective date of the 1977 Act. 584

S.W.2d 758, 762 (Tenn. 1979). The Court noted that the Collins decision

effectively invalidated all death penalty provisions going back to the 1915 Act,

which had life imprisonment as the sole punishment for m urder. It also held

that because the 1919 Act did not have a severability clause, all of the

sentencing provisions of the 1919 Act were unconstitutional, not just the death

penalty provision. 584 S.W.2d at 765. In several cases this Court has

followed Miller and modified sentences to life imprisonment. For instance, in

Wynn v. State, we modified the 99-year sentence of a defendant convicted of

murder under the 1919 Act to life imprisonment. No. 03-C-01-9212-CR00399; 1993 WL 153198, at *1 (Tenn. Crim. App., May 12, 1993). Our

decision in Wynn had the effect of reducing the amount of time W ynn had to

serve before he was eligible for parole. Apparently, this is why Appellant is

appealing his 100-year sentence.
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As stated previously, Appellant claims that he was sentenced under the

statute which was declared unconstitutional by State v. Hailey, 505 S.W.2d

712. In Hailey, Chapter 192 of the Public Acts of 1973 was declared

unconstitutional. Id. at 714. Appellant was sentenced under the 1919 Act and

therefore, Hailey does not support Appellant’s position. Nevertheless, the

statute Appellant was sentenced under, Chapter 5 of the Public Acts of 1919,

was declared unconstitutional in the Tennessee Supreme Court decision of 

Miller v. State, 584 S.W.2d 758, 765 (Tenn. 1979). The State acknowledges

that an illegal sentence may be challenged and corrected at any time. See

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

further argues that an “illegal sentence” within the m eaning of Burkhart is a

sentence imposed in direct contravention of the express provisions of a

statute. Since, Appellant’s sentence was permitted by the murder statute in

effect when he was convicted, the State argues that, despite the later declared

unconstitutionality of the statute, the sentence is merely voidable, not void. 

Therefore, the State maintains any post-conviction petition seeking to correct

the sentence must be filed within the applicable statute of limitations for postconviction petitions. Because Appellant waited well-beyond the limitations

period to file his petition the State m aintains Appellant is not entitled to relief.

We are not inclined to read Burkhart in the niggardly fashion suggested

by the State. While it is true that Burkhart itself dealt with a sentence imposed

in contravention of a statute, nothing in that opinion limits the definition of an

illegal sentence to the situation posed in that case. We hold that a sentence

imposed under a statute that has been declared unconstitutional by our

highest state court is an illegal sentence and may be corrected at any time.
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Accordingly, the judgment of the post-conviction court is reversed;

Appellant’s sentence is modified to a term of life imprisonment. This case is

remanded to the trial court for execution of judgment and collection of costs.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE B. JONES, PRESIDING JUDGE

___________________________________

DAVID H. WELLES, JUDGE