           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                         SEPTEMBER SESSION, 1996                   FILED
                                                                October 13, 1997
ROBERT IRWIN GWIN,              )      C.C.A. NO. 02C01-9512-CR-00380
                                )                              Cecil Crowson, Jr.
      Appellant,                )                                  Appellate C ourt Clerk
                                )
                                )      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
                                     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 m urder in the perp etration of a felony and was senten ced to 100 ye ars

imprisonment. This Court affirmed the conviction in Gwin v. S tate, 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 T enne ssee Boar d of Pa rdons and P aroles regain ed cu stody o f 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

declare d unco nstitutiona l by the Te nness ee Sup reme C ourt case of State v.

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

receive d was null an d void. T he Sta te claim s that A ppella nt’s pe tition is

barred by the statute of limitations found in Tennessee Code Annotated

Sectio n 40-3 0-102 (1990 ) (repe aled). W hile ac know ledgin g that h is petitio n 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.




                                           -2-
      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 19 15 Ac t) which abolis hed th e dea th pen alty in T enne ssee and re place d 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 Furm an v. G eorgia, 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 m urder to death , life imprisonmen t or some pe riod over twenty-

five 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 a nd was broade r than its title. 505 S.W .2d 712 , 715 (T enn. 19 74). In

response to the Hailey and Furman decisions, the T ennesse e legislature

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

that all pers ons co nvicted of firs t degree murde r would re ceive the d eath

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

                                          -3-
U.S. Constitution as prohibiting a mandatory death penalty, the Tennessee

Supreme Court decided Collins v. S tate, 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 Furm an v. G eorgia 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 enacte d which again m ade the impos ition of the de ath pen alty

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

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

imprisonm ent was the e xclusive punishm ent for first degree m urder 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 inva lidated all de ath pen alty provision s going b ack to the 1915 A ct,

which had life impris onm ent as the so le pun ishm ent for m urder . It also h eld

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

senten cing prov isions of the 1919 A ct were u ncons titutional, not ju st the dea th

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

followed Miller and m odified sente nces to life im prison men t. For ins tance , in

Wy nn 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-CR-

00399; 1993 WL 153198, at *1 (Tenn. Crim. App., May 12, 1993). Our

decision in Wynn had the effect of red ucing the amou nt of time W ynn had to

serve before he wa s eligible for paro le. App arently , this is wh y App ellant is

appealing his 100-year sentence.

                                          -4-
       As stated previously, Appellant claims that he was sentenced under the

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

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

uncon stitutional. 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 de clared un constitution al in the T ennes see Su preme Court de cision 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. Burkha rt, 566 S.W .2d 871 , 873 (T enn. 19 78). How ever, the S tate

further arg ues tha t an “illegal se ntence ” within the m eaning of Burkhart is a

senten ce imp osed in d irect contra vention o f the expre ss provisio ns of a

statute . Since , Appe llant’s se ntenc e was perm itted by th e mu rder sta tute in

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

uncon stitutionality of the statute, the senten ce is me rely voidab le, not void.

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

the sen tence m ust be filed within the a pplicable statute of lim itations for po st-

conviction petitions. Because Appellant waited well-beyond the limitations

period to file his petition th e State m aintains A ppellant is n ot entitled to re lief.



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

by the Sta te. W hile 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.

                                            -5-
       Accordingly, the judgment of the post-conviction court is reversed;

Appe llant’s se ntenc e is mo dified to a term of life im prison men t. This c ase 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




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