        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 10, 2016

             STATE OF TENNESSEE v. BOBBY LEE MILES, JR.

                Appeal from the Circuit Court for Robertson County
                  No. 98-0234    William R. Goodman, III, Judge


                 No. M2015-02281-CCA-R3-CD – Filed May 31, 2016
                        _____________________________

The Defendant, Bobby Lee Miles, Jr., pleaded guilty in 1999 to aggravated burglary and
received a three-year sentence. On October 21, 2015, the Defendant filed a Rule 36.1
motion to correct an illegal sentence, alleging that the pretrial credit on the judgment
form is incorrect. The trial court summarily dismissed the motion, and the Defendant
appeals the dismissal, maintaining that his sentence is illegal. After a thorough review of
the record, we conclude that the trial court properly dismissed the Defendant’s motion to
correct his sentence.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Bobby Lee Miles, Jr., Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
John W. Carney, Jr., District Attorney General; and Jason White, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

        On July 14, 1999, the Defendant pleaded guilty to aggravated burglary. The
judgment form indicates that the trial court sentenced him to serve three years as a
standard offender in the Department of Correction. The judgment form also indicates
that two periods of jail credit should be applied to the Defendant’s sentence. On October
21, 2015, more than a decade later, the Defendant filed a Rule 36.1 motion to correct an
illegal sentence, asserting that there is a third period of pretrial credit for which he is
entitled. On November 2, 2015, the trial court dismissed the motion without the
appointment of counsel and without a hearing. The Defendant timely appealed the trial
court’s decision, contending that the trial court erred in summarily dismissing his motion
to correct an illegal sentence without the appointment of counsel and a hearing.

        Tennessee Rule of Criminal Procedure 36.1 provides an avenue to seek correction
of an illegal sentence:

      (a) Either the defendant or the state may, at any time, seek the 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. For purposes
      of this rule, an illegal sentence is one that is not authorized by the
      applicable statutes or that directly contravenes an applicable statute.

      (b) Notice of any motion filed pursuant to this rule shall be promptly
      provided to the adverse party. If the motion states a colorable claim that the
      sentence is illegal, and if the defendant is indigent and is not already
      represented by counsel, the trial court shall appoint counsel to represent the
      defendant. The adverse party shall have thirty days within which to file a
      written response to the motion, after which the court shall hold a hearing on
      the motion, unless all parties waive the hearing.

      (c)(1) If the court determines that the sentence is not an illegal sentence, the
      court shall file an order denying the motion.

      (2) If the court determines that the sentence is an illegal sentence, the court
      shall then determine whether the illegal sentence was entered pursuant to a
      plea agreement. If not, the court shall enter an amended uniform judgment
      document, see Tenn. S. Ct. Rule 17 setting forth the correct sentence.

      (3) If the illegal sentence was entered pursuant to a plea agreement, the
      court shall determine whether the illegal provision was a material
      component of the plea agreement. If so, the court shall give the defendant
      an opportunity to withdraw his or her plea. If the defendant chooses to
      withdraw his or her plea, the court shall file an order stating its finding that
      the illegal provision was a material component of the plea agreement,
      stating that the defendant withdraws his or her plea, and reinstating the
      original charge against the defendant. If the defendant does not withdraw
      his or her plea, the court shall enter an amended uniform judgment
      document setting forth the correct sentence.

                                             2
       The Tennessee Supreme Court recently addressed “whether Rule 36.1 expands the
scope of relief available . . . by permitting either the defendant or the State to correct
expired illegal sentences.” State v. Brown, 479 S.W.3d 200, 205 (Tenn. 2015). Our
supreme court held that “Rule 36.1 does not expand the scope of relief and does not
authorize the correction of expired illegal sentences. Therefore, a Rule 36.1 motion may
be summarily dismissed for failure to state a colorable claim if the alleged illegal
sentence has expired.” Id. at 211.

       The Defendant argues that his sentence is illegal. The record reflects that the
Defendant’s sentence expired well before he filed his Rule 36.1 motion. Because the
Defendant has completely served his sentence, there is no longer a remedy that this court
may provide to correct any illegality in the sentence. Furthermore, a trial court’s failure
to award pretrial jail credits does not render the sentence illegal and is insufficient,
therefore, to establish a colorable claim for relief under Rule 36.1. Id. at 213.
Accordingly, we conclude that the petition was properly dismissed by the trial court,
without appointing counsel or holding a hearing.

                                    CONCLUSION

      Based upon the foregoing, we affirm the judgment of the trial court.



                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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