             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                              APRIL 1997 SESSION
                                                       FILED
                                                           May 7, 1997

STATE OF TENNESSEE,                   )               Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
                                      )
             Appellee,                )     No. 02C01-9502-CR-00051
                                      )
                                      )     Shelby County
v.                                    )
                                      )     Honorable L. T. Lafferty, Judge
                                      )
ELWIN SOUTH,                          )     (Motion for Reduction of Sentence)
                                      )
             Appellant.               )


For the Appellant:                    For the Appellees:

Elwin N. South, Sr., Pro Se           Charles W. Burson
L.C.R.C.F. Rt. 1, Box 330,            Attorney General of Tennessee
Tiptonville, TN 38079                        and
                                      Ellen H. Pollack
                                      Assistant Attorney General of Tennessee
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      John W. Pierotti, Jr.
                                      District Attorney General
                                      201 Poplar Avenue
                                      Memphis, TN 38103-1947




OPINION FILED:____________________


REVERSED AND REMANDED

Joseph M. Tipton
Judge
                                        OPINION



              The defendant, Elwin South, appeals as of right from the Shelby County

Criminal Court’s order denying his motion for reduction of sentence. Pursuant to guilty

pleas, the defendant was convicted of three counts of attempted aggravated rape, a

Class B felony, and sentenced to three concurrent eight-year terms of confinement.

The issue presented for our review is whether the trial court erred by denying the

defendant’s motion for reduction of sentence because it was untimely filed. The

underlying question in this appeal is when did the defendant file his motion. We

reverse the trial court and remand the case for reconsideration in light of this opinion.



              The defendant’s sentences were imposed on August 12, 1993, with the

trial court denying any type of alternative sentencing. The defendant filed a motion to

reduce his sentences, alleging serious medical problems, including prostate cancer,

and the need to support his wife, given the fact that his social security income ended

while he was in prison.



              Pursuant to Rule 35, Tenn. R. Crim. P., a trial court has the authority to

reduce a defendant’s sentence “upon application filed within 120 days after the date the

sentence is imposed . . . .” The Committee Comment to the rule states that the time

period may not be tolled or extended. However, we believe that the trial court records

and the appellate court records in this case, of which we take judicial notice, indicate

that the problems in this case may not be of the defendant’s doing so that justice could

require consideration of the merits of his motion by the trial court. See State v. Darrell

Tipton, No. 03C01-9305-CR-00142, Carter County, slip op. at 2 (Tenn. Crim. App. Nov.

22, 1993) (“It would be a travesty of justice to hold a pro se appellant . . . accountable

for an oversight, in the office of the Court Clerk, not of his doing.”)




                                              2
              On May 9, 1996, nunc pro nunc to March 8, 1995, the trial court entered

an order stating that it denied the defendant’s Rule 35 motion on March 8, 1995,

without a hearing because the motion was untimely filed and the trial court did not

otherwise have jurisdiction over the defendant. The order stated that the Shelby

County Criminal Court Clerk “apparently failed to notify the petitioner of the Court

ruling.” The trial court acknowledged that the defendant claims his motion was filed in

November 1993, but it concluded that “the Clerk’s records reflect the motion was

received in that office on February 20, 1995, and formally filed on February 22, 1995.”

Appendix A to the order includes a copy of the defendant’s motion marked “FILED 2-

22-95" by a deputy court clerk and a copy of an envelope cover reflecting a mailing

from the defendant to the trial court clerk’s office and containing a postal stamp dated

“FEB 20 ‘95" and another stamp stating, “DELIVERED FEB. 21 1995.”



              The defendant filed a motion to reconsider in which he alleged that he

mailed his Rule 35 motion by registered/certified mail on November 24, 1993, and that

the trial court clerk’s office received it on November 29, 1993, well within the 120-day

limit. He attached a copy of a registered/certified mail receipt that reflects that an article

addressed to “Ms. Minerva Johnican Clerk, 201 Poplar Ave., Mphs., TN. 38103” was

received by a person under the signature of “Gaines Crim. Court Clerk.” We also note

that the defendant’s signature on his Rule 35 motion was notarized on November 24,

1993. The trial court denied the motion to reconsider for the same reason that it denied

the motion for reduction.



              On appeal, the defendant continues to assert that his motion was filed

timely. He argues that he has diligently pursued his motion and that he should not be

penalized for circumstances outside of his control. In response, the state counters with

basic arguments. It simply says that the motion was filed on February 22, 1995,

thereby being outside the 120-day limitation. It then argues that even if the motion



                                              3
were timely, the trial court was authorized to exercise its discretion in denying the

motion without a hearing and the petitioner has not shown that the interest of justice

would be served by modifying his sentences.



              We believe that the state’s arguments are unconvincing. First, we

question the trial court’s determination of disputed facts without the benefit of an

evidentiary hearing. When the defendant alleges that he has timely filed the motion

and produces supporting documents that on their face reflect a timely filing, the trial

court should not resolve a contested factual issue without giving the parties an

opportunity to present their respective cases.



              In any event, we are inclined to believe that the defendant’s claims are

supported by the records before this court. Aside from the date of the defendant’s

notarized signature on the motion and the date on the registered/certified mail receipt,

our court’s records reflect that it is highly improbable that the defendant submitted his

Rule 35 motion in February 1995. On February 23, 1995, the appellate court clerk in

Jackson marked as filed a pleading styled Application for Audita Querela Writ of

Certiorari that complains about the fact the Shelby County Criminal Court has failed to

act on his Motion for Reduction of Sentence filed in November 1993. The documents

reflect that the defendant’s signature on the pleading was notarized on February 17,

1995. The Application’s attachments include the defendant’s Motion for Reduction of

Sentence and a copy of the November 29, 1993, registered/certified mail receipt. The

Application also includes a claim by the defendant that he inquired by letter in 1994

about the status of his motion. The Application seeks to require the trial court to act on

the merits of the defendant’s motion.



              In other words, the timing of the Application filed with this court and its

allegations do not lend themselves easily in support of the trial court’s conclusion that



                                             4
the defendant’s Rule 35 motion was first received in the trial court clerk’s office on

February 20, 1995. Moreover, as previously indicated, if the defendant’s pleadings and

exhibits in the trial court are taken as true, then he has shown that he filed his motion

on November 29, 1993, when the registered/certified mail receipt was signed by a

deputy clerk.1 What happened with the motion after that would not be of the

defendant’s doing. In any event, the record is such that we believe that a dismissal for

untimeliness would have to result from further hearing.



                 As for the state’s claim that the defendant has made no showing that the

interests of justice would be served by a sentence reduction, we do not believe it is our

obligation to undertake that analysis. First, it was never undertaken by the trial court,

the forum with the primary authority and duty to act on the merits of the Rule 35 motion.

Its discretion relative to such a motion, though, does not include not acting on the

merits. Second, the records before us are insufficient to warrant a ruling either way. In

fact, save the Rule 35 motion and subsequent pleadings, none of the case pleadings

and papers that are required to be sent as part of the record on appeal, see T.R.A.P.

25(a) and (b), are before us. Thus, the trial court, being aware of the circumstances of

the cases in which the defendant seeks relief, remains the best forum at this time to

assess the relative merits of the defendant’s motion.



                 In conclusion, we hold that the trial court should not have dismissed the

defendant’s Rule 35 motion for untimeliness under the record before us. If the issue of

timeliness is still contested, the trial court has the authority to conduct an appropriate

hearing for resolution of the matter. If such a hearing is unnecessary, the trial court




         1
             At the relevant times for this case, Rule 49(c), Tenn. R. Crim. P., provided in part: “The
clerk shall endorse upon every pleading and other papers filed with the clerk in a proceeding the
date and hour of the filing.” This reflects that the receipt of the pleading by the clerk constitutes
the filing and not the clerk’s endorsement of the date and time.

                                                       5
shall rule on the merits of the defendant’s Rule 35 motion. The order of the trial court is

reversed and the case is remanded for reconsideration in light of this opinion.



                                                 _____________________________
                                                 Joseph M. Tipton, Judge

CONCUR:



____________________________
David G. Hayes, Judge



____________________________
William M. Barker, Judge




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