From Casetext: Smarter Legal Research

State v. Burkhart

Supreme Court of Tennessee
Jul 10, 1978
566 S.W.2d 871 (Tenn. 1978)

Summary

holding sentence imposed in direct contravention of express statutory provisions "a nullity"

Summary of this case from Davis v. State

Opinion

May 30, 1978. Rehearing Denied July 10, 1978.

Appealed from the Criminal Court, Lauderdale County, Herman L. Reviere, J.

Reversed and remanded.

John F. Southworth, Jr., Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, for petitioner.

Hughie Ragan, Jackson, for respondent.


OPINION


We granted certiorari in this case to review a decision by the Court of Criminal Appeals holding that a trial judge who has imposed a sentence at variance with an express statutory mandate may not correct the sentence to conform to the statute after the judgment has become final.

From the allegations in and exhibits to the pleadings, it appears that the respondent, William Lee Burkhart, was convicted of burglary in the first degree, and sentenced to a term of twelve and one-half to fifteen years. While his appeal of that conviction was pending, he was confined in the Fort Pillow State Farm in Lauderdale County. He escaped from that institution on May 9, 1975, and was recaptured on May 27th. On October 10, 1975, in the Circuit Court of Lauderdale County, the respondent pled guilty to escape, and was sentenced to one year imprisonment. Although the judgment is not in the record, it appears that it provided that the sentence for the escape conviction would begin on that date, with credit for the time the respondent had spent in jail since his recapture. This had the effect, whether intended or not, of making the sentence for escape run concurrently with that for burglary. The respondent's burglary conviction was affirmed on appeal on June 28, 1976, and he was confined in the penitentiary. Some time thereafter, it appears that the Supervisor of Resident Records at the State Department of Correction informed the respondent that, under the provisions of T.C.A. § 39-3802, it was mandatory that his sentence for escape be served at the expiration of his sentence for burglary, and that his records were being adjusted accordingly. T.C.A. § 39-3802 provides, in pertinent part, as follows:

If any inmate . . . shall escape or attempt to escape, he shall be indicted for an escape, and on conviction, be punished by imprisonment in the penitentiary for a term of one (1) to five (5) years to commence from and after the expiration of the original term.

The respondent then filed a pro se petition with the Circuit Court of Lauderdale County, asking that the trial judge order the Supervisor of Resident Records to set the sentences to run concurrently, as originally provided. The trial judge, noting the provisions of T.C.A. § 39-3802, dismissed the petition without a hearing. On appeal, the Court of Criminal Appeals reversed, with one judge dissenting. The majority of the court held that, although the October, 1975, judgment was erroneous as being contrary to the express provisions of T.C.A. § 39-3802, the trial judge could not correct it after it had become final.

In holding as it did, the court below relied on Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369 (1961). That reliance was misplaced. In Stinson, the court correctly refused to alter a judgment that, although incorrect, was in conformity with the applicable statutes and had become final. We are not faced with that situation here, for in the instant case the judgment entered in the trial court on October 10, 1975, was in direct contravention of the express provisions of T.C.A. § 39-3802, and consequently was a nullity. As 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. See, e.g., In re Sandel, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806 (1966); State v. Shilinsky, 248 Iowa 596, 81 N.W.2d 444 (1957); State v. Fountaine, 199 Kan. 434, 430 P.2d 235 (1967); State v. Culver, 23 N.J. 495, 129 A.2d 715 (1957); State v. Leathers, 271 Or. 236, 531 P.2d 901 (1975): Frazier v. Langlois, 103 R.I. 607, 240 A.2d 152 (1968); 168 A.L.R. 706, 719. Thus, the trial judge in the instant case had both the power, and the duty, to correct the judgment of October 10, 1975, as soon as its illegality was brought to his attention.

However, that determination alone does not dispose of the case. The respondent alleged in pleadings in the trial court that he had pled guilty to the escape charge as the result of a plea bargain, one of the terms of which was that the sentence for escape and that for burglary would be served concurrently. If true, the respondent would be entitled to withdraw his plea of guilty to escape, and to proceed to trial on that charge. See Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176 (1967). Accord, Application of Tinsley, 178 Cal.App.2d 15, 2 Cal. Rptr. 642 (1960). But see State v. Loux, 69 Wn.2d 855, 420 P.2d 693 (1966). However, as the trial judge did not hold a hearing on this question, we cannot resolve it on the record before us. We therefore remand the case to the trial court, with directions that a hearing be held on the issues raised by the respondent.

On remand, the trial court should note that, at present, the respondent's sentence as imposed by the October 10, 1975, order is still in effect according to its original terms. The Department of Correction may not alter the judgment of a court, even if that judgment is illegal. See In re Sandel, 64 Cal.2d 412, 50 Cal.Rptr. 462, 412 P.2d 806 (1966). Furthermore, while, as we noted above, the trial court does have the power to correct the judgment of October 10, 1975, its order merely dismissing the respondent's petition was ineffective to do so.

The judgment of the Court of Appeals is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.

HENRY, C.J., FONES and HARBISON, JJ., and QUICK, Special Justice, concur.


Summaries of

State v. Burkhart

Supreme Court of Tennessee
Jul 10, 1978
566 S.W.2d 871 (Tenn. 1978)

holding sentence imposed in direct contravention of express statutory provisions "a nullity"

Summary of this case from Davis v. State

holding that even after a judgment becomes final, a trial judge has "the power and duty" to correct any illegality

Summary of this case from May v. Carlton

holding sentence imposed in direct contravention of express statutory provisions "a nullity"

Summary of this case from Clinard v. State

holding that an illegal sentence may be set aside at any time

Summary of this case from State v. Watkins

recognizing that TDOC "may not alter the judgment of a court, even if that judgment is illegal"

Summary of this case from State v. Wooden

recognizing that TDOC “may not alter the judgment of a court, even if that judgment is illegal”

Summary of this case from State v. Wooden

recognizing that the Tennessee Department of Correction “may not alter the judgment of a court, even if that judgment is illegal”

Summary of this case from State v. Brown

recognizing that “[t]he Department of Correction may not alter the judgment of a court, even if that judgment is illegal”

Summary of this case from Cantrell v. Easterling

describing as illegal and a “nullity” a judgment which imposed concurrent sentences in “direct contravention” of a statute requiring consecutive sentences

Summary of this case from Cantrell v. Easterling

In Burkhart, the pivotal case on the subject of illegal sentences, the defendant escaped from prison while serving a term for burglary.

Summary of this case from Edwards v. State

In Burkhart, the trial court had no authority to impose concurrent sentencing, and it directly contravened a statute by doing so.

Summary of this case from Edwards v. State

describing as illegal and a "nullity" a judgment which imposed concurrent sentences in "direct contravention" of a statute requiring consecutive sentences

Summary of this case from Edwards v. State

In Burkhart, the petitioner filed the functional equivalent of a motion to correct an illegal sentence in the trial court.

Summary of this case from Moody v. State

In State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), the defendant pleaded guilty to escape and was sentenced to one year imprisonment to be served concurrently with his prior burglary conviction.

Summary of this case from State v. Taylor

stating that "the judgment entered in the trial court . . . was in direct contravention of the express provisions of [a sentencing statute] and consequently was a nullity"

Summary of this case from State v. Ghormley

In Burkhart, the judgment for that defendant's escape conviction allowed the sentence to be served concurrently with the sentence he was serving when he escaped, in direct contravention of a statute which mandated the escape conviction to be served consecutively to the prior sentence.

Summary of this case from Jackson v. Donahue

remanding to the convicting court to conduct an evidentiary hearing to determine whether the petitioner's sentence for escape was illegal, thereby entitling him to withdraw the plea, because the sentence was ordered to be served concurrently rather than consecutively to his sentence for burglary in his plea agreement

Summary of this case from Hoover v. Steward

remanding to the convicting court to conduct an evidentiary hearing to determine whether the petitioner's sentence for escape was illegal, thereby entitling him to withdraw the plea, because the sentence was ordered to be served concurrently rather than consecutively to his sentence for burglary in his plea agreement

Summary of this case from Turner v. State

declaring a concurrent sentence void when statute expressly mandated consecutive sentencing for the conviction offense

Summary of this case from Covington v. Worthington

In Burkhart, our supreme court further 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."

Summary of this case from Moore v. Myers

In Burkhart, the Tennessee Supreme Court stated that, "[a]s a general rule, a trial judge may correct an illegal, as opposed to an erroneous, sentence at any time, even if it has become final."

Summary of this case from Simon v. State

noting that the trial court had the power and duty to correct an illegal sentence at any time

Summary of this case from State v. France

In Burkhart, the high court ruled that a sentence imposed in contravention of a statute is illegal, a nullity and may be corrected "at any time, even if it has become final.

Summary of this case from Thornton v. State

In Burkhart, it appears that the defendant had been convicted of burglary and sentenced to a term of twelve and one-half to fifteen years.

Summary of this case from Lambert v. Morgan

noting that the trial court had the power and duty to correct an illegal sentence at any time

Summary of this case from Hatton v. State
Case details for

State v. Burkhart

Case Details

Full title:STATE of Tennessee, Petitioner, v. William Lee BURKHART, Respondent

Court:Supreme Court of Tennessee

Date published: Jul 10, 1978

Citations

566 S.W.2d 871 (Tenn. 1978)

Citing Cases

Lambert v. Morgan

See Mario Lambert v. Jack Morgan, Warden, No. M1999-02321-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 599…

Cantrell v. Easterling

An illegal sentence is one which is “in direct contravention of the express provisions of [an applicable…