         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                     August 2000 Session

              STATE OF TENNESSEE v. DELWIN KEITH O'NEAL

                     Appeal from the Criminal Court for Marshall County
                               No. 13121   Charles Lee, Judge



                    No. M2000-00650-CCA-R3-CD - Filed August 31, 2000


In 1997, the defendant pled guilty in Marshall County to aggravated assault. Pursuant to a negotiated
plea agreement, he was sentenced as a Range II, multiple offender and received a six-year sentence,
consecutive to a prior Montgomery County sentence. The defendant now claims his sentence does
not comport with the plea agreement and asks this court to modify the sentence. Upon our review
of the record, we conclude the defendant did not timely challenge his sentence and deny relief.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JERRY L. SMITH, J., and L.T. LAFFERTY,
SR. J., joined.

Delwin Keith O'Neal, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On June 18, 1997, the defendant pled guilty to aggravated assault, a Class C felony. Pursuant
to a negotiated plea agreement, he received a six-year sentence as a Range II, multiple offender. On
April 13, 1999, the defendant filed a “Motion for Reduction of Sentence,” and on January 24, 2000,
he filed a “Motion for Specific Performance” to compel the state to abide by the terms of the
negotiated agreement. It appears both motions were subsequently denied by the trial court. The
defendant appeals, claiming he was not informed his current sentence would be served consecutively
to a prior sentence imposed in Montgomery County. In support of his claim that he had no
knowledge that his Marshall County sentence would be served consecutively, the defendant attached
his alleged copy of the Marshall County judgment, which does not contain his signature. The
defendant now asks this court to modify his sentence to reflect the terms of the plea agreement.
                                            ANALYSIS

       We conclude that the defendant’s motion for “reduction of sentence” and his motion for
“specific performance” were untimely. Thus, the trial court is without jurisdiction to modify the
defendant’s sentence.

      The defendant was sentenced pursuant to a negotiated guilty plea in June 1997. The
judgment, therefore, became final in 1997.

         With limited exceptions, the trial court is without jurisdiction to amend a judgment once it
is final. See State v. Moore, 814 S.W.2d 381, 382-83 (Tenn. Crim. App. 1991). First, Tenn. Code
Ann. § 40-35-212(d) allows the trial court to retain jurisdiction over a defendant’s sentence while
he is awaiting transfer from the local jail or workhouse to the Tennessee Department of Correction.
The defendant was not awaiting transfer to the TDOC; therefore, the trial court had no authority
under this statute to modify his sentence.

         Secondly, Tenn. R. Crim. P. 35(b) provides for the reduction of a sentence by the trial court
upon motion of the defendant, provided the motion is filed within120 days after the date the sentence
was imposed. However, his motion is time-barred. The judgment in the current case was entered on
June 18, 1997. The defendant’s first motion to reduce his sentence was not filed until April 13,
1999. Clearly, the defendant failed to meet the 120-day time limit for filing his motion. Thus, the
trial court was without jurisdiction to modify the defendant’s sentence, and the defendant’s motions
were properly dismissed.

       We also note that the defendant missed the one-year deadline for filing a petition for post-
conviction relief. See Tenn. Code Ann. § 40-30-202. Thus, even if we were to treat the motion as
a request for post-conviction relief, such relief would be inappropriate as it is time-barred.

       Furthermore, we conclude the defendant has failed to show he did not receive the sentence
contemplated. The judgment in the technical record is signed by the defendant and reflects the
consecutive nature of his sentences.

                                          CONCLUSION

       The defendant’s motion seeking modification of his sentence was not timely filed.
Furthermore, it appears from the record that the defendant signed the judgment indicating the
consecutive nature of his sentences. Thus, we affirm the judgment of the trial court.

                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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