State of Tennessee v. Kenneth Lebron Wynn - dissenting

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 19, 2015
STATE OF TENNESSEE v. KENNETH L. WYNN
Appeal from the Criminal Court for Hamilton County
Nos. 188918, 189686-189688 Don W. Poole, Judge
No. E2015-00575-CCA-R3-CD – Filed October 14, 2015
JAMES CURWOOD WITT, JR., J., dissenting.
Viewing the defendant‟s motion in the light most favorable to the movant,
as we are obliged to do, see State v. David Morrow, No. W2014-00338-CCA-R3-CO, slip
op. at 3-4 (Tenn. Crim. App., Jackson, Aug. 13, 2014); see also Tenn. Sup. Ct. R. 28 §
2(H), we should accede to the State‟s concession that a fair reading of the claim indicates
that it bespeaks an illegal sentence.
Furthermore, Rule 36.1 contains no provision disqualifying a movant on the
ground that the challenged sentence has expired. Indeed, to the contrary, “Rule 36.1
states that a defendant „may, at any time, seek the correction of an illegal sentence by
filing a motion to correct an illegal sentence in the trial court in which the judgment of
conviction was entered.‟” State v. Sean Blake, No. W2014-00856-CCA-R3-CO, slip op.
at 3 (Tenn. Crim. App., Jackson, Jan. 8, 2015) (quoting Tenn. R. Crim. P. 36.1(a)).
Because I respectfully differ from the majority on these points, I would
reverse and remand the case for a hearing.
JAMES CURWOOD WITT, JR., JUDGE