        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE

                           Assigned on Briefs March 25, 2015



                    STATE OF TENNESSEE v. TRAVIS WARE



                 Appeal from the Criminal Court for Bradley County

         Nos. 95064, 95036, 96256, 96256, 96257            Sandra Donaghy, Judge




           No. E2014-02014-02172-CCA-R3-CD-FILED-AUGUST 5, 2015




NORMA MCGEE OGLE, J., dissenting.



       I respectfully disagree with the majority’s conclusion that a petitioner is not entitled to

seek relief under Rule 36.1 when his sentence has been fully served. “On its face, Rule 36.1

does not limit the time within which a person seeking relief must file a motion, nor does it

require the person seeking relief to be restrained of liberty.” State v. Donald Terrell, No.

W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson, Dec. 8,

2014). This court has repeatedly quoted with approval the following language from the
concurring in results only opinion written by Judge Woodall and joined by Judge Glenn in

State v. John Talley, No. E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *3-4 (Tenn.

Crim. App. at Knoxville, Dec. 26, 2014):



             Rule 36.1 was promulgated and adopted by the Tennessee

             Supreme Court in an order filed December 18, 2012, and Rule

             36.1 was subsequently “ratified and approved [by the Tennessee

             General Assembly] by House Resolution 33 and Senate

             Resolution 11.” Compiler’s Notes, Tenn. R. Crim. P. 36.1. This

             rule, authored by our supreme court and ratified and approved

             by the Tennessee General Assembly, begins with the following

             clear and unambiguous words:



                    Either the defendant or the state may, at any time,

                    seek 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.



             Tenn. R. Crim. P. 36.1(a) (emphasis added).


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                    To me “at any time” means what it says, whether before

             or after sentences have been fully served. If our supreme court

             had intended for Rule 36.1 relief to not be available when the

             challenged sentences have been fully served, that specification

             would have been clearly stated. If the General Assembly had

             desired the restriction in the rule, one or both houses of the

             General Assembly would have refused to ratify and approve

             Rule 36.1 as it is written.



                    It is my respectful opinion that even if (1) I disagree with

             some or all of Rule 36.1’s provisions, and (2) I believe the

             consequences of the rule can ultimately and unfairly lead to trial

             courts in Tennessee vacating decades’ old convictions, as a

             judge on an intermediate appellate court I must apply the plain

             meaning of Rule 36.1.



See State v. Nickelle N. Jackson, No. W2014-02445-CCA-R3-CD, 2015 WL 4241074, at *6

(Tenn. Crim. App. at Jackson, July 14, 2015); Marcus Deangelo Lee v. State, No. W2014-

00994-CCA-R3-CO, 2015 WL 2330063, at *3 (Tenn. Crim. App. at Jackson, May 13, 2015).



      I agree with Judge Woodall’s eloquent analysis. I would also note that in the instant
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case, the trial court’s order contains a specific finding that the petitioner was on bail at the

time he committed the offense. Accordingly, in the instant case, I would remand the case to

the trial court for appointment of counsel and a hearing on the petitioner’s motion.




                                                   _________________________________

                                                   NORMA MCGEE OGLE, JUDGE




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