         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2006

                     XAVIER TODD v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                            No. P-24878 W. Fred Axley, Judge



                  No. W2005-02483-CCA-R3-PC - Filed September 27, 2006


The appellant appeals from the trial court’s denial of a motion for nunc pro tunc order. Because such
an order is not subject to an appeal as of right under Rule 3 of the Tennessee Rules of Appellate
Procedure, we dismiss the appellant’s appeal.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Dismissed.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
JOHN EVERETT WILLILAMS, JJ., joined.

Xavier Todd, Pro Se, Memphis, Tennessee..

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dean Decandia, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                             OPINION

         On June 19, 2000, the appellant pled guilty, pursuant to a negotiated plea agreement, to two
counts of theft of property over $60,000, one count of intentionally evading arrest in a motor vehicle,
three counts of burglary of a building, two counts of driving a motor vehicle in violation of the
Habitual Motor Vehicle Offender’s Act, one count of possession of a handgun by a convicted felon,
and one count of theft of property over $1,000. The trial court sentenced the appellant to serve an
effective sentence of thirty years. The trial court ordered the sentences for the above convictions to
be served concurrently to each other, as well as, a sentence the defendant was serving from a federal
conviction. The appellant was also classified as a career offender with a sixty percent release
eligibility.
         On March 29, 2001, the appellant filed a pro se Petition for Post-conviction Relief. The
appellant argued that he was denied effective assistance of counsel and that he entered his guilty plea
unknowingly and involuntarily. On April 10, 2001, the post-conviction court appointed private
counsel to represent the appellant. The appellant subsequently filed two amended petitions for post-
conviction relief, one on August 7, 2001 and one on May 16, 2002. Both petitions argued that the
appellant’s plea was entered into involuntarily and unknowingly because his plea was based solely
on the fact that the State promised that his state sentences were to be served concurrently to his
federal sentences. At the time he filed his petitions, the appellant was not imprisoned in a federal
facility. The second petition also alleged ineffective assistance of counsel based upon advice by his
trial counsel to agree to a sentence outside of his sentencing range.

         On April 24, 2003 the post-conviction court entered a Consent Order on the appellant’s
petition for post-conviction relief. This order modified the appellant’s sentence to a forty-five
percent sentencing range from sixty percent because of confusion concerning current sentencing
ranges of defendants who had the old Class X felony status. The trial court modified the judgments
to reflect the change of the appellant’s sentencing range to forty-five percent. On February 17, 2004
the trial court entered an order setting release on own recognizance transferring the appellant to
federal custody.

        On October 4, 2004, the appellant filed a writ of habeas corpus with the trial court. Xavier
S. Todd v. State, No. W2005-00681-CCA-R3-HC, 2005 WL 2259060 (Tenn. Crim. App., at
Jackson, Sept. 16, 2005). The habeas corpus court denied the writ and the appellant appealed to this
Court. We affirmed the denial of the appellant’s writ because he was currently housed in a federal
prison, and under Tennessee Code Annotated section 29-21-102, “a state judge has no authority to
order the release of a person” who is in federal custody. Id. at * 2.

        On June 14, 2005, the appellant filed his motion for nunc pro tunc order that is the subject
of the current appeal. The appellant argued that the consent order entered by the post-conviction
court should have also contained an agreement that his state sentences were coterminous with his
federal sentences, therefore, the State’s detainer was unnecessary. On September 26, 2005, the trial
court denied the appellant’s motion stating:


             IT APPEARS TO THE COURT THAT, based upon the Defendant’s
       Motion, the State’s Response, statements of counsel, and opinion of the Court, that
       the Motion is not well-taken because the State of Tennessee’s detainer on the
       Defendant is proper.

               Defendant’s state sentence will expire after his projected release date from
       federal custody. Moreover, there is no certainty that Defendant will be paroled by the
       State of Tennessee after completing his state sentence at the agreed percentage. The
       detainer will insure that, upon completing his federal sentence, he is brought to state
       custody to complete the remainder of his state sentence.


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Acting pro se, the appellant filed a timely notice of appeal.


                                            ANALYSIS

        On appeal the appellant is acting pro se. He argues that the trial court erred in denying the
motion for nunc pro tunc order because it was the intention of the State, the appellant and the Court
to make his State sentences coterminous with his federal sentence. There is no basis for this
conclusion in the record before this Court. The appellant argues that the plea colloquy and post-
conviction proceedings support his argument, but these are not included in the record on appeal. The
State argues that the appellant’s appeal should be dismissed because Rule 3 of the Tennessee Rules
of Appellate Procedure does not allow an appeal from the trial court’s order in this particular
situation.

       Rule 3(b) of the Tennessee Rules of Appellate Procedure sets out the circumstances when
a defendant has an appeal as of right. Rule 3(b) states:


       In criminal actions an appeal as of right by a defendant lies form any judgment of
       conviction entered by a trial court from which an appeal lies to the Supreme Court
       or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty
       or nolo contendere, [in limited circumstances]. The defendant may also appeal as of
       right from an order denying or revoking probation, and from a final judgment in a
       criminal contempt, habeas corpus, extradition, or post-conviction proceeding.


       The order in the case sub judice does not fit within the circumstances delineated above. We
have previously dismissed an appeal from a trial court’s denial of a motion for nunc pro tunc order
based on Rule 3(b). State v. Anthony Layne, No. M2004-01753-CCA-R3-CD, 2005 WL 1190739
(Tenn. Crim. App., at Nashville, May 13, 2005). Because the trial court’s order is not appealable
under Rule 3(b), the appellant is not entitled to an appeal as of right from that order.

                                         CONCLUSION

       For the foregoing reasons, we dismiss the appellant’s appeal.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE


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