        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs September 1, 2015

             STATE OF TENNESSEE v. JOHN TRAION DAVIS
                   Appeal from the Circuit Court for Lauderdale County
                       Nos. 7625, 7626 Joe H. Walker, III, Judge



                 No. W2015-00275-CCA-R3-CD - Filed November 24, 2015




JAMES CURWOOD WITT, JR., J., dissenting.

                Reluctantly and respectfully, I dissent from the majority opinion in this case.
The Tennessee Rule of Criminal Procedure 36.1 movant in this case stated a colorable claim
to relief, and based upon the current wording of the rule, that is all that is required. See Tenn.
R. Crim. P. 36.1(b).

              I have examined the trial court record of both cases, and the majority accurately
states the sequence of offenses and arrests in this case so far as the same appears in the
existing record. Based upon that review, it is extremely unlikely if not practically impossible
that the defendant committed the March 14, 2004 offense in case number 7625 while on bail
for the November 22, 2003 offense in case number 7626. The problem, however, is that in
examining the record, this court is necessarily gleaning factual information from the arrest
warrants. See Tenn. R. App. P. 13(c); see also, e.g., Tony Hoover v. Henry Steward, Warden,
No. W2011-02453-CCA-R3-HC (Tenn. Crim. App., Jackson, Jan. 18, 2013) (noting that
“this Court does not serve as a fact-finding court”); Arthur Turner v. David Mills, Warden,
No. E2009-00194-CCA-R3-HC (Tenn. Crim. App., Knoxville, May 13, 2010) (same); Perry
Anthony Cribbs v. State, No. W2006-01381-CCA-R3-PD (Tenn. Crim. App., Jackson, July
1, 2009) (same); State v. Willie Andrew Cole, No. 01C01-9801-CR-00006 (Tenn. Crim.
App., Nashville, Mar. 2, 1999) (same). The statement of a colorable claim, however, by
definition hypothesizes errors in the facts as shown in the record.

              Rule 36.1 does not require the movant to initially present documentation
supporting his or her claim to an illegal sentence. See, e.g., George William Brady v. State,
No. E2013-00792-CCA-R3-PC, slip op. at 8 (Tenn. Crim. App., Knoxville, Dec. 19, 2013);
State v. Brandon Rollen, No. W2012-01513-CCA-R3-CD, slip op. at 13 (Tenn. Crim. App.,
Nashville, Sept. 11, 2013). Without that requirement, the mere allegation of a colorable
claim stands alone as the key to obtaining a hearing on the claim.

               I take no pleasure at all in yielding to the extremely broad and liberal wording
of Rule 36.1. In my view, the rule is ill-conceived and accomplishes nothing worthwhile
that the pre-existing remedies of post-conviction relief and habeas corpus do not afford the
illegally sentenced defendant. (The rule does afford the State a mechanism for correcting an
illegal sentence.) That said, it is a rule of procedure that an intermediate appellate court is
bound to follow according to its terms, as broad and liberal as they may be. See Seiber v.
Reeves Logging, 284 S.W.3d 294, 301 (Tenn. 2009) (“[S]tatutes whose terms are plain and
unambiguous require no construction and should be enforced according to their plain
terms.”). For this reason, I would order the trial court to conduct an evidentiary hearing in
the case.



                                                          JAMES CURWOOD WITT, JR.
