         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs August 7, 2007

                     PAUL T. DAVIS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                          No. 2001-A-483    Monte Watkins, Judge



                   No. M2006-01831-CCA-R3-HC - Filed January 31, 2008



JAMES CURWOOD WITT , JR., J., dissenting and concurring.

                 I concur in the result that this court has jurisdiction to hear the appeal, but
respectfully, I disagree with the holding that the habeas corpus petition was filed in an appropriate
court.

               I agree that the civil rules do not govern the proceeding before us, which is a
challenge to restraint imposed via a criminal conviction. However, I would decline to excuse the
petitioner from a timely filing of a notice of appeal because I disagree that his claim on appeal
warrants redress.

                The majority graciously cites authorities that indicate that a habeas corpus challenge
to an illegal sentence must be filed in the court nearest the petitioner’s place of restraint. I view
those authorities apt, particularly when the rationale for allowing a conviction-court filing is in part
based upon the quoted statement that the conviction court is authorized to correct an illegal sentence
at any time. I believe that any court with collateral-attack jurisdiction, not just the conviction court,
may correct the illegal judgment at any time. In McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), our
supreme court clearly determined that the habeas corpus court was empowered to set aside the illegal
judgment that had been imposed by another court. Id. at 95. Additionally, in Summers v. State, 212
S.W.3d 251 (Tenn. 2007), our supreme court held that a habeas corpus petitioner must attach to his
petition all documents that manifest his illegal sentence claim, tends to equip the non-conviction
habeas corpus court with access to the sentencing documents that emanated in the conviction court.
See id. at 262 (We . . . hold that the trial court’s summary dismissal of the habeas corpus petition was
proper in light of Summers’ failure to attach to the habeas corpus petition pertinent documents from
the record of the underlying proceedings to support the illegal sentence claim.”). I do not believe
that the conviction court has a peculiar power to correct an illegal sentence by which it would be
preferred as a habeas corpus tribunal.
              To me, the result is that the interests of justice do not compel the excusing of an
untimely notice of appeal.

                                                     __________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                               -2-
