The record before this Court does not contain a copy of the original judgment for the Defendant’s aggravated 1

kidnapping conviction. It does, however, contain a copy of the corrected judgment. The “Release Eligibility” section

of the corrected judgment indicates both the “Standard 30%” and “Violent 100%” designations. The record also contains

(continued...)

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 28, 2004

DENNIS EUGENE EVANS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 79374 Ray L. Jenkins, Judge

No. E2004-01059-CCA-R3-PC - Filed December 13, 2004

The Defendant, Dennis Eugene Evans, pled guilty to robbery and aggravated kidnapping. The

Defendant was sentenced as a Range I standard offender to concurrent terms ofthree and eight years,

respectively. The original judgments indicated that the Defendant would be eligible for parole after

having served thirty percent of his sentence. The trial court subsequently corrected the judgment for

the Defendant’s aggravated kidnapping conviction to reflect that the sentence was to be served at one

hundred percent. The Defendant subsequently filed a petition for post-conviction relief to set aside

the corrected judgment. The trial court summarily denied relief, and this appeal followed. We

affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN

EVERETT WILLIAMS, JJ., joined.

Dennis Eugene Evans, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and

Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant pled guilty on September 27, 2000, to one count of robbery and one count of

aggravated kidnapping. The Defendant was sentenced as a Range Istandard offender to concurrent

terms of three years and eight years, respectively. The judgment forms reflecting the Defendant’s

convictions indicated his release eligibility to be thirty percent, which the Defendant claims to be 1
(...continued) 1

a copy of a letter from an official with the Department of Correction to the trial judge stating that the sentence imposed

on Sept. 27, 2000, is illegal because it indicates a release eligibility date of June 2003 for an offense requiring one

hundred percent service. In light of these documents and the fact that the Defendant is proceeding pro se, we accept as

accurate the Defendant’s contention that the original judgment entered on his aggravated kidnapping conviction set forth

a release eligibility of thirty percent. 

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in accord with his plea agreement. Thirty percent release eligibility is the correct designation for a

“standard” offender sentenced to a Range I sentence. See Tenn. Code Ann. § 40-35-501(c).

On January 3, 2001, an official with the Department of Correction wrote the trial judge a

letter, advising her that the sentence imposed on the Defendant for the aggravated kidnapping

conviction was illegal because sentences for that offense must be served at one hundred percent. See

Tenn. Code Ann. § 40-35-501(i)(1), (i)(2)(D). Accordingly, on January 10, 2001, a corrected

judgment was filed as to the Defendant’s aggravated kidnapping conviction, reflecting that the

sentence was to be served at one hundred percent.

On March 31, 2004, the Defendant filed a pleading styled “Petition to Correct an Illegal

Sentence and/or Petition for Post Conviction Relief.” The post-conviction court summarily

dismissed this pleading on April 8, 2004, on the basis that it was barred by the one-year statute of

limitations applicable to petitions for post-conviction relief. See Tenn. Code Ann. § 40-30-102(a).

On April 12, 2004, the Defendant filed another pleading, styled “Amended Petition to Correct an

Illegal Sentence and or Amended Petition for Post Conviction Relief.” The post-conviction court

summarily dismissed this second pleading as time-barred on April 19, 2004. This appeal followed.

In his pro se pleadings, the Defendant asserts that the trial court lacked jurisdiction to enter

the corrected judgment. Accordingly, he argues that the corrected judgment should be set aside and

the original judgment reinstated. The Defendant also claims in this appeal that the post-conviction

court erred in summarily dismissing his petitions. We disagree on both counts. 

The sentence initially imposed on the Defendant for the aggravated kidnapping conviction

was illegal because it directly contravened a statute in existence at the time it was imposed. See

Taylor v. State, 995 S.W.2d 78, 85 (Tenn. 1999). According to the corrected judgment form, the

Defendant committed an aggravated kidnapping on April 28, 1999. Our legislature determined that

persons committing the offense of aggravated kidnapping on or after July 1, 1995, “shall serve one

hundred percent (100%) of the sentence imposed by the court . . . .” Tenn. Code Ann. § 40-35-

501(i)(1), (i)(2)(D). Thus, the trial court’s original judgment that the Defendant be eligible for

release after serving thirty percent of his aggravated kidnapping sentence was contrary to our

sentencing statutes and therefore illegal.

The Defendant contends that the trial court lost jurisdiction to correct the illegal sentence

thirty days after judgment was entered. The Defendant is correct that, normally, the judgment of a

trial court becomes final thirty days after entry, absent a timely notice of appeal or an appropriate

post-trial motion. Tenn. R. App. P. 4(a), (c); See State v. Green, 106 S.W.3d 646, 648 (Tenn. 2003).
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Once the judgment is final, the trial court loses jurisdiction to alter or amend. See Green, 106

S.W.3d at 648-49. However, our supreme court has held that, “a trial judge may correct an illegal,

as opposed to a merely erroneous, sentence at any time, even if it has become final.” State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Accordingly, the trial court in this matter “had both

the power, and the duty, to correct the judgment of [September 27, 2000,] as soon as its illegality was

brought to [its] attention.” Id. The Defendant’s claim that the trial court lacked the authority to

correct his judgment is without merit. 

The Defendant also alleges that, as corrected, the judgment entered against him contravenes

his plea agreement. Our Rules of Criminal Procedure provide that a motion to withdraw a guilty plea

must be made prior to sentence being imposed or, “to correct manifest injustice,” afterthe imposition

of sentence but before the judgment becomes final. See Tenn. R. Crim. P. 32(f). Clearly, the

Defendant is time-barred from such a motion in this case.

In essence, the Defendant’s claim is that he would not have entered his plea had he known

that he would have to serve one hundred percent of his aggravated kidnaping sentence. That is, his

plea -- as reflected by the corrected judgment -- was not voluntary. A post-conviction petition is the

proper avenue for attacking an involuntary guilty plea. See, e.g., Reiko Nolen v. State, No. W2001-

03003-CCA-R3-CD, 2002 WL 31443174, at *4 (Tenn. Crim. App., Jackson, Oct. 31, 2002).

However, absent an appeal, a petitioner has only one yearfrom the date on which his or her judgment

becomes final in which to file for post-conviction relief. See Tenn. Code Ann. 40-30-102(a). As

set forth above, the judgment of a trial court becomes final thirty days after its entry, absent a timely

notice of appeal or post-trial motion. Tenn. R. App. P. 4 (a), (c); See Green, 106 S.W.3d at 648. 

Here, however, the relevant “trigger” date was the date on which the trial court filed its corrected

judgment: January 10, 2001. See Manny T. Anderson v. State, No. M2002-00641-CCA-R3-PC,

2003 WL 2002092, at *4 (Tenn. Crim. App., Nashville, April 30, 2003) (holding that, when an

amended judgment was filed three years after the original entry of judgment, the post-conviction

limitations period began to run on the date the amended judgment was filed). Thus, the one-year

post-conviction limitations period began to run in January 2001 and expired in January 2002. The

Defendant did not file his petition until March 2004. The trial court was therefore correct in

dismissing the Defendant’s petitions as time-barred.

 The Defendant argues that the post-conviction statute of limitations does not apply when

the claim is to correct an illegal sentence, relying on this Court’s unpublished opinions in James

Gordon Coons, III v. State, No. 01C01-9801-CR-00014, 1999 WL 275009, at *3 (Tenn. Crim. App.,

Nashville, May 6, 1999), and Kevin Lavell Abston v. State, No. 02C01-9807-CR-00212, 1998 WL

906475, at *1 (Tenn. Crim. App., Jackson, Dec. 30, 1998). As corrected, however, the Defendant’s

sentence is not illegal. The Defendant’s argument that the post-conviction statute of limitations is

not applicable is misplaced and without merit.
Even were the Defendant to recast his pleading as one for a writ of habeas corpus, his efforts would be for

2

naught. A writ of habeas corpus may be granted where it is apparent from the face of the judgment or the record of the

proceedings upon which the judgment is rendered that a sentence is illegal. Stephenson v. Carlton, 28 S.W.3d 910 (Tenn.

2000). As explained above, the corrected judgment in this case -- the judgment under which the Defendant is being

confined -- does not reflect an illegal sentence. Accordingly, the Defendant is not entitled to habeas corpus relief. See

Michael D. O’Guin v. Myers, No. M2003-02846-CCA-R3-HC, 2004 WL 2290487 (Tenn. Crim. App., Nashville, Oct.

12, 2004) (petitioner being held pursuant to a judgment that corrected the initial judgment’s illegal sentence was not

entitled to habeas corpus relief because the amended judgment ordered the correct sentence and the correct conviction

and was therefore not void as illegal). 

-4-

By his pleading, the Defendant is attempting to nullify a legal sentence and reinstate an illegal

one. There is no procedure available for attaining the Defendant’s objective. At best, the Defendant 2

would be entitled to have his plea set aside, allowing him to either re-plead to a legal sentence, or

be tried. In order to set aside his plea, however, the Defendant must proceed via a collateral attack

on his conviction, and the post-conviction avenue for this attack is no longer available because of

the passage of time.

In sum, the original judgment entered against the Defendant with respect to his aggravated

kidnapping conviction set forth an illegal sentence. The trial court had the authority to correct the

judgment in order to set forth a legal sentence. Any abridgment of the Defendant’s rights caused by

the trial court’s action in correcting the judgment was a proper matter for a petition for postconviction relief. The time for filing such a petition expired in January 2002. The Defendant,

having failed to file his petition within the limitations period, is now time-barred from pursuing his

claim. The post-conviction court did not err in summarily dismissing the Defendant’s petitions, and

we therefore affirm the judgments of the post-conviction court. 

___________________________________ 

DAVID H. WELLES, JUDGE