        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON


                RICHARD MADKINS v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Shelby County
                      No. 94-00771; P-26449 Joseph B. Dailey, Judge



                  No. W2003-02937-CCA-R3-PC - Filed October 8, 2004




The Appellant, Richard Madkins, appeals the trial court's imposition of a twenty-five-year
sentence for the offense of especially aggravated kidnapping after remand by the post-conviction
court. The State has filed a motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We grant the State's motion
and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS AND
ALAN E. GLENN , JJ. joined.

Richard Madkins, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General,
for the appellee, the State of Tennessee.



                                 MEMORANDUM OPINION


       Appellant was convicted by a Shelby County jury of especially aggravated robbery and
attempted felony murder. See State v. Madkins, 989 S.W.2d 697 (Tenn. 1999). For these
convictions, he received consecutive sentences of sixty years, as a range III offender, on each
count. Id. On direct appeal, the Appellant’s conviction for attempted felony murder was


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reversed and dismissed under State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). See Madkins,
989 S.W.2d at 698. The matter was remanded to the trial court for further proceedings, i.e., a
trial on the charge of attempted second degree murder. Madkins, 989 S.W.2d at 699.

       On January 4, 2002, Appellant filed a petition for writ of habeas corpus in the Davidson
County Criminal Court, challenging the legality of 1985 convictions used to enhance his 1994
Shelby County conviction for especially aggravated robbery. By order entered April 24, 2002,
the Davidson County Criminal Court granted habeas corpus relief by finding the sentences in
case numbers 84-04503, 84-04938, 84-00678, 85-00679, 85-00680, and 85-00681 void and
remanding the matter to the Criminal Court for Shelby County for further appropriate action.

        On May 14, 2002, the Appellant filed, pro se, a petition for post-conviction relief
challenging his conviction for especially aggravated robbery. As grounds for relief, Appellant
alleged that the prior convictions used to enhance this sentence had been found to be illegal by
the Davidson County Criminal Court. See Tenn. Code Ann. § 40-30-102(b)(3). The State
responded to the petition, conceding that post-conviction relief should be granted with respect to
the sentence received in case 94-00771, especially aggravated robbery. On September 19, 2002,
the Shelby County Criminal Court granted post-conviction relief in case 94-00771 as to the
sentence only. The matter was remanded to the trial court for appropriate action.

        On December 12, 2002, Appellant filed a pleading captioned “Amendment to Original
Petition for Post-Conviction Relief.” In this document, Appellant expressed his objection to the
post-conviction court’s order of September 19, 2002, remanding the matter in 94-00771 for
resentencing. A second “amendment” was filed on January 24, 2003, alleging that trial counsel
was ineffective. The State responded that these “amendments” should be dismissed as time-
barred and the fact that one petition had already been filed and granted. On February 21, 2003,
the post-conviction court dismissed the amendments, finding that the trial court no longer had
jurisdiction over any amendments as relief was granted on September 19, 2002, and that any
additional claims were barred by the statute of limitations. Appellant responded by filing a
“motion to alter or amend a judgment” on March 24, 2003. In this pleading, Appellant
demanded immediate release from confinement.

        On November 4, 2003, the Shelby County Criminal Court, acting under authority of the
September 19, 2002, order granting post-conviction relief, sentenced the Appellant to twenty-five
years in the Department of Correction in case number 94-00771, Appellant’s conviction for
especially aggravated robbery. Appellant filed a timely notice of appeal from the trial court’s
November 4, 2003, judgment.

        In his brief, the Appellant contends that the trial court failed to comply with Rule 35(b),
Tennessee Rules of Criminal Procedure. Specifically, the Appellant contends that, since the trial
court failed to act within 120 days of the post-conviction court’s September 19, 2002, order, the
trial court was without jurisdiction to resentence the Appellant. The State responds that the time



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frame imposed by Rule 35, Tennessee Rules of Criminal Procedure, is limited to the time in
which a defendant may petition the court to reduce the sentence imposed.

        Initially, we note, as observed by the State, the Appellant does not challenge any other
aspect of his twenty-five-year sentence nor has he included a transcript of the sentencing hearing
of November 4, 2003. In this regard, he has waived all other challenges to the twenty-five-year
sentence imposed by the trial court. See Tenn. R. App. P. 24(a), (b). Moreover, we find the
State’s position as to the inapplicability of Rule 35 is well-taken. Rule 35, Tennessee Rules of
Criminal Procedure, enables the trial court to maintain jurisdiction over a matter to permit
modification of a sentence if such application for modification is filed within 120 days after the
sentence is imposed. Nothing in this rule requires a trial court to act within 120 days after a case
is remanded for resentencing nor do we construe the Rule as requiring the same.

        The Appellant has failed to establish that he is entitled to relief. Nor has he established
that the trial court acted illegally in not resentencing him within 120 days of the September 17,
2003, order. Accordingly, it is ordered that the State’s motion is granted. The judgment of the
trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                              ___________________________________
                                              DAVID G. HAYES, JUDGE




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