        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  October 5, 2004 Session

                STATE OF TENNESSEE v. RICHARD MADKINS

                     Appeal from the Criminal Court for Shelby County
                   Nos. 84-04503, 84-04938, 84-04939, 84-00678, 84-00679,
                    84-00680 and 84-00681      John P. Colton, Jr., Judge



                   No. W2003-02938-CCA-R3-CD - Filed January 5, 2005


The state appeals from the order of the Shelby County Criminal Court dismissing multiple
indictments brought against the petitioner, Richard Madkins. The court had dismissed the
indictments in connection with granting habeas corpus relief to the petitioner owing to illegal
concurrent sentencing. Finding that dismissal of the indictments was an improper remedy, we
reverse and remand for further proceedings consistent with the procedures set forth in McLaney v.
Bell, 59 S.W.3d 90 (Tenn. 2001).

     Tenn. R. App. P. 3; Judgment of the Criminal Court is Reversed and Remanded.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Steve Crossnoe, Assistant District Attorney General, for
the Appellant, State of Tennessee.

Kamilah E. Turner, Memphis, Tennessee, for the Appellee, Richard Madkins.

                                           OPINION

               The record in the case before this court is exceptionally meager. It consists of a
November 3, 2003 “Order Granting Motion to Dismiss Indictment and Withdraw Guilty Plea,” the
state’s “Motion to Amend Order to Grant Motion to Dismiss and to Withdraw Guilty Plea,” and the
state’s “Notice of Appeal,” filed December 2, 2003. The motion that instigated the order being
appealed – presumably filed by the petitioner – is not part of the appellate record.

               From the November 3, 2003 Order, we glean that the underlying proceeding involves
a petition seeking habeas corpus relief on the basis of illegal concurrent sentencing for offenses
committed in 1984 while the petitioner was on bond. We are not apprised of the sentences actually
imposed, and no judgments of conviction are in the record to enlighten us. We are, however, told
that the offenses involved multiple incidents of robbery with a deadly weapon. Finding that the
petitioner was ineligible for concurrent sentencing,1 the court ruled as follows:

                           In State v. Burkhart, the court held that “the trial judge may
                  correct an illegal judgment, as opposed to a merely erroneous
                  sentence, at any time even if it has become final.” State v. Burkhart,
                  566 S.W.3d [sic] 871 (Tenn. 1978). Here, the petitioner was found
                  guilty by a jury in case 84-04503. In cases 84-04938, 8[4]-00678, -
                  79, -80, and -81, however, the petitioner pled guilty. After careful
                  review of the documents filed by counsel, this Court agrees that the
                  trial court was in error when it sentenced the defendant. Based in part
                  on the findings of the Davidson County Criminal Court,[2] and in part
                  on the pertinent statutes, this Court finds that the concurrent sentences
                  given to the petitioner in cases 8[4]-00678, 8[4]-00679, 8[4]-00680,
                  and 85-00681 are void, and are ordered dismissed with prejudice.
                  The conviction and sentence for case 84-04503 will stand and remain
                  valid and unalterable, as it was not the result of a guilty plea, but
                  rather a verdict found by a jury. Furthermore, it was also the first of
                  the offenses committed, and not subject to sentencing as part of a
                  group of offenses committed while the defendant was released on
                  bail.

                                                  CONCLUSION

                        IT IS THEREFORE ORDERED, ADJUDGED AND
                  DECREED that Petitioner’s MOTION TO DISMISS
                  INDICTMENTS is GRANTED IN PART, AND DENIED IN
                  PART.

               Subsequent to the order, the state filed a motion to amend the order in which it
pointed out that cases 84-04938 and 84-04939 were inadvertently omitted from the list of void
sentences. The state also complained that the court’s order dismissing the indictments contravened
the supreme court’s dictates in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). No order appears in



         1
            See Tenn. Code Ann. § 40-20-111(b) (1982) (“In any case in which a defendant commits a felony while such
defendant was released on bail . . . and the defendant is convicted of both such offenses, the trial judge shall not have
discretion as to whether the sentences shall run concurrently or cumulatively but shall order that such sentences be served
cumulatively.”).

         2
            W e are advised by the briefs of the parties that the original habeas corpus petition was filed in the Davidson
County Criminal Court. That court ruled that the petitioner’s concurrent sentences were illegal and void, and that court
transferred the matter to Shelby County for appropriate corrective action.

                                                           -2-
the appellate record disposing of the state’s motion, and the state’s notice of appeal only references
the November 3, 2003 Order.

                 On appeal, the state concedes that the petitioner’s sentences appear to be void, but
it correctly insists that the proper remedy is not dismissal of the underlying indictments. Instead,
McLaney instructs,

                If the sentence is void, then either the plea may be withdrawn or the
                conviction remains intact. If the plea is withdrawn, then [the
                petitioner] would be ordered held to bail pending prosecution for the
                offense; if the conviction remained intact, then [the petitioner] would
                be committed to custody pending resentencing. Thus, there is legal
                cause for continued detention pending further proceedings.

Id. at 94-95.

                 For his part, the petitioner concedes on appeal that, pursuant to McLaney, the
appropriate action that the court should have taken was to allow him to withdraw his guilty pleas and
either proceed to trial or allow the plea to remain intact and be resentenced. The petitioner then
launches into a separate argument that the indictments, nevertheless, should be dismissed because
the elapsed time between the date of his pleas and the date that the sentences were found to be illegal
violated his Sixth Amendment right to a speedy trial. We find absolutely no evidence in this record
that the trial court was ever asked to consider or rule upon any speedy trial claim. The petitioner
makes a bald assertion that he moved for a dismissal of the indictments on speedy trial grounds and
that the trial court granted his motion. We hold that the issue, if indeed raised below and ruled upon,
has been waived for failure to cite to the record. See Tenn. R. App. P. 27(a)(7), (g), (h); Tenn. R.
Ct. Crim. App. 10(b).

                Accordingly, we reverse the trial court’s order dismissing the indictments and remand
the case to the Shelby County Criminal Court for further proceedings consistent with the directives
of McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001).




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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