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Rule 36.1 – Correction of Illegal Sentence

May 14, 2021 | Criminal Procedure, Tennessee

(a)

(1) Either the defendant or the state may seek to correct an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. Except for a motion filed by the state pursuant to subdivision (d) of this rule, a motion to correct an illegal sentence must be filed before the sentence set forth in the judgment order expires. The movant must attach to the motion a copy of each judgment order at issue and may attach other relevant documents. The motion shall state that it is the first motion for the correction of the illegal sentence or, if a previous motion has been made, the movant shall attach to the motion a copy of each previous motion and the court’s disposition thereof or shall state satisfactory reasons for the failure to do so.
(2) For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute.
(b)

(1) Notice of any motion filed pursuant to this rule shall promptly be provided to the adverse party. The adverse party shall have thirty days within which to file a written response to the motion.
(2) The court shall review the motion, any response, and, if necessary, the underlying record that resulted in the challenged judgment order. If the court determines that the motion fails to state a colorable claim, it shall enter an order summarily denying the motion.
(3) If the motion states a colorable claim that the unexpired sentence is illegal, the court shall determine if a hearing is necessary. If the court, based on its review of the pleadings and, if necessary, the underlying record, determines that the motion can be ruled upon without a hearing, it may do so in compliance with subdivision (c) of this rule. If the court determines that a hearing is necessary, and if the defendant is indigent and is not already represented by counsel, the court shall appoint counsel to represent the defendant. The court then shall promptly hold a hearing on the motion.
(c)

(1) With or without a hearing, if the court determines that the sentence is not an illegal sentence, the court shall file an order denying the motion.
(2) With or without a hearing, if the court determines that the sentence is an illegal sentence, the court shall then determine whether the illegal sentence was entered pursuant to a plea agreement. If not, the court shall file an order granting the motion and also shall enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
(3) With or without a hearing, if the court determines that the illegal sentence was entered pursuant to a plea agreement, the court shall determine whether the illegal aspect of the sentence was a material component of the plea agreement.

(A) If the illegal aspect was not a material component of the plea agreement, the court shall file an order granting the motion and also shall enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
(B) If the illegal aspect was a material component of the plea agreement but the illegal aspect was to the defendant’s benefit, the court shall enter an order denying the motion.
(C) If the illegal aspect was a material component of the plea agreement and the illegal aspect was not to the defendant’s benefit, the court shall give the defendant an opportunity to withdraw his or her plea. If the defendant chooses to withdraw his or her plea, the court shall file an order stating its findings that the illegal aspect was a material component of the plea agreement and was not to the defendant’s benefit, stating that the defendant withdraws his or her plea, and reinstating the original charge against the defendant. If the defendant does not withdraw his or her plea, the court shall file an order granting the motion and also shall enter an amended uniform judgment document, see Tenn. Sup. Ct. R. 17, setting forth the correct sentence.
(d) In any case in which the trial court failed to impose a statutorily required sentence of community supervision for life in conjunction with imposing a non-plea-bargained sentence, the state may file a motion under this rule to correct the omission. Any motion filed pursuant to this subdivision (d) must be filed no later than ninety days after the sentence imposed in the judgment order expires.
(e) An order granting or denying a motion filed under this rule shall set forth the court’s findings of fact and conclusions of law as to the matters alleged in the motion.
(f) Upon the filing of an amended uniform judgment document in those proceedings in which the court grants a motion filed under this rule, or upon the filing of an order denying a motion filed under this rule, the defendant or the state may initiate an appeal as of right pursuant to Rule 3, Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1

Amended by order filed December 29, 2015, effective date July 1, 2016.

Advisory Commission Comments [2013].

Rule 36.1 was adopted to provide a mechanism for the defendant or the state to seek to correct an illegal sentence. With the adoption of this rule, Tenn. R. App. P. 3 also was amended to provide for an appeal as of right from the court’s ruling on a motion filed under Rule 36.1 to correct an illegal sentence.

Advisory Commission Comment [2016].

In 1978, the Tennessee Supreme Court stated that “[a]s a general rule, 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). Rule 36.1 was adopted in order to incorporate within the Rules of Criminal Procedure the procedure for correcting illegal sentences, including those arising from plea bargains. Rule 36.1(a)(2) incorporates the definition of “illegal sentence” set forth in Cantrell v. Easterling, 346 S.W.3d 445 (Tenn. 2011).

The former version of subdivision (a) provided that a motion to correct an illegal sentence could be filed “at any time.” Subdivision (a) is amended to clarify that such motions must be filed before the defendant’s sentence expires, except as set forth in subdivision (d) (pertaining to the erroneous omission of a sentence of community supervision for life). Subdivision (a) also is amended to require the party seeking to correct an unexpired illegal sentence to include with the motion a copy of the relevant judgment order(s); to permit the movant to also include other supporting documents; and to require the movant to state whether the motion is the first motion to correct the illegal sentence (and, if not, to provide information about each earlier motion).

Subdivision (b) is amended to accord with the revisions to subdivision (a). Subdivision (b) also is amended to permit the summary denial of motions that do not set forth a colorable claim; to provide for the disposition on the merits of motions that do not require a hearing; and to require that any necessary hearing be held “promptly.”

Subdivision (c)(3) is revised to limit the circumstances under which relief may be granted where the defendant has entered into a plea bargain which contains an illegal sentence. As revised, the rule provides that the court shall deny the motion if the defendant benefitted from the bargained-for illegal sentence. For example, if the illegal provision was for the sentence to run concurrently with another sentence, when the law actually required a consecutive sentence, the defendant benefitted from the bargained-for illegal sentence; in such cases, relief under this rule is not available. This revision of subdivision (c)(3) essentially incorporates the limitations on habeas corpus relief available for plea-bargained illegal sentences set forth in Tennessee Code Annotated section 29-21-101(b) (2012).

For clarity in the court’s decision-making process, the substance of former subdivision (c)(4) is moved to the new subdivision (c)(3)(i).

New subdivision (d) is adopted to address the circumstances under which the state may seek to correct a judgment order that failed to impose a statutorily required sentence of lifetime community supervision. See, e.g., Tenn. Code Ann. ยง 39-13-524 (2014). Subdivision (d) permits the state to seek such correction of non-plea-bargained sentences to add the community-supervision requirement, so long as the state’s motion is filed no later than ninety days after the expiration of the sentence set forth in the judgment order. The reason for allowing the state ninety days from the expiration of the sentence imposed in the judgment is that the state might not realize that the sentence of lifetime community supervision was omitted until the defendant is released from confinement.

To facilitate appellate review, new subdivision (e) requires courts to include their findings of fact and conclusions of law in the orders disposing of motions filed under this rule.

Subdivision (f) clarifies that the time period for filing an appeal commences upon the filing of an amended uniform judgment document in those proceedings in which the court grants relief under this rule, and upon the filing of an order in those proceedings in which the court denies relief under this rule.