             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs September 28, 2004

                DENNIS EUGENE EVANS v. STATE OF TENNESSEE

                             Appeal from the Criminal Court for Knox County
                                  No. 79374     Ray L. Jenkins, Judge



                       No. E2004-01059-CCA-R3-PC - Filed December 13, 2004


The Defendant, Dennis Eugene Evans, pled guilty to robbery and aggravated kidnapping. The
Defendant was sentenced as a Range I standard offender to concurrent terms of three and eight years,
respectively. The original judgments indicated that the Defendant would be eligible for parole after
having served thirty percent of his sentence. The trial court subsequently corrected the judgment for
the Defendant’s aggravated kidnapping conviction to reflect that the sentence was to be served at one
hundred percent. The Defendant subsequently filed a petition for post-conviction relief to set aside
the corrected judgment. The trial court summarily denied relief, and this appeal followed. We
affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Dennis Eugene Evans, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                                     OPINION

       The Defendant pled guilty on September 27, 2000, to one count of robbery and one count of
aggravated kidnapping. The Defendant was sentenced as a Range I standard offender to concurrent
terms of three years and eight years, respectively. The judgment forms reflecting the Defendant’s
convictions indicated his release eligibility to be thirty percent,1 which the Defendant claims to be


         1
           The record before this Court does not contain a copy of the original judgment for the Defendant’s aggravated
kidnapping conviction. It does, however, contain a copy of the corrected judgment. The “Release Eligibility” section
of the corrected judgment indicates both the “Standard 30%” and “Violent 100%” designations. The record also contains
                                                                                                          (continued...)
in accord with his plea agreement. Thirty percent release eligibility is the correct designation for a
“standard” offender sentenced to a Range I sentence. See Tenn. Code Ann. § 40-35-501(c).

         On January 3, 2001, an official with the Department of Correction wrote the trial judge a
letter, advising her that the sentence imposed on the Defendant for the aggravated kidnapping
conviction was illegal because sentences for that offense must be served at one hundred percent. See
Tenn. Code Ann. § 40-35-501(i)(1), (i)(2)(D). Accordingly, on January 10, 2001, a corrected
judgment was filed as to the Defendant’s aggravated kidnapping conviction, reflecting that the
sentence was to be served at one hundred percent.

        On March 31, 2004, the Defendant filed a pleading styled “Petition to Correct an Illegal
Sentence and/or Petition for Post Conviction Relief.” The post-conviction court summarily
dismissed this pleading on April 8, 2004, on the basis that it was barred by the one-year statute of
limitations applicable to petitions for post-conviction relief. See Tenn. Code Ann. § 40-30-102(a).
On April 12, 2004, the Defendant filed another pleading, styled “Amended Petition to Correct an
Illegal Sentence and or Amended Petition for Post Conviction Relief.” The post-conviction court
summarily dismissed this second pleading as time-barred on April 19, 2004. This appeal followed.

        In his pro se pleadings, the Defendant asserts that the trial court lacked jurisdiction to enter
the corrected judgment. Accordingly, he argues that the corrected judgment should be set aside and
the original judgment reinstated. The Defendant also claims in this appeal that the post-conviction
court erred in summarily dismissing his petitions. We disagree on both counts.

        The sentence initially imposed on the Defendant for the aggravated kidnapping conviction
was illegal because it directly contravened a statute in existence at the time it was imposed. See
Taylor v. State, 995 S.W.2d 78, 85 (Tenn. 1999). According to the corrected judgment form, the
Defendant committed an aggravated kidnapping on April 28, 1999. Our legislature determined that
persons committing the offense of aggravated kidnapping on or after July 1, 1995, “shall serve one
hundred percent (100%) of the sentence imposed by the court . . . .” Tenn. Code Ann. § 40-35-
501(i)(1), (i)(2)(D). Thus, the trial court’s original judgment that the Defendant be eligible for
release after serving thirty percent of his aggravated kidnapping sentence was contrary to our
sentencing statutes and therefore illegal.

        The Defendant contends that the trial court lost jurisdiction to correct the illegal sentence
thirty days after judgment was entered. The Defendant is correct that, normally, the judgment of a
trial court becomes final thirty days after entry, absent a timely notice of appeal or an appropriate
post-trial motion. Tenn. R. App. P. 4(a), (c); See State v. Green, 106 S.W.3d 646, 648 (Tenn. 2003).

         1
           (...continued)
a copy of a letter from an official with the Department of Correction to the trial judge stating that the sentence imposed
on Sept. 27, 2000, is illegal because it indicates a release eligibility date of June 2003 for an offense requiring one
hundred percent service. In light of these documents and the fact that the Defendant is proceeding pro se, we accept as
accurate the Defendant’s contention that the original judgment entered on his aggravated kidnapping conviction set forth
a release eligibility of thirty percent.

                                                           -2-
Once the judgment is final, the trial court loses jurisdiction to alter or amend. See Green, 106
S.W.3d at 648-49. However, our supreme court has held that, “a trial judge may correct an illegal,
as opposed to a merely erroneous, sentence at any time, even if it has become final.” State v.
Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). Accordingly, the trial court in this matter “had both
the power, and the duty, to correct the judgment of [September 27, 2000,] as soon as its illegality was
brought to [its] attention.” Id. The Defendant’s claim that the trial court lacked the authority to
correct his judgment is without merit.

        The Defendant also alleges that, as corrected, the judgment entered against him contravenes
his plea agreement. Our Rules of Criminal Procedure provide that a motion to withdraw a guilty plea
must be made prior to sentence being imposed or, “to correct manifest injustice,” after the imposition
of sentence but before the judgment becomes final. See Tenn. R. Crim. P. 32(f). Clearly, the
Defendant is time-barred from such a motion in this case.

         In essence, the Defendant’s claim is that he would not have entered his plea had he known
that he would have to serve one hundred percent of his aggravated kidnaping sentence. That is, his
plea -- as reflected by the corrected judgment -- was not voluntary. A post-conviction petition is the
proper avenue for attacking an involuntary guilty plea. See, e.g., Reiko Nolen v. State, No. W2001-
03003-CCA-R3-CD, 2002 WL 31443174, at *4 (Tenn. Crim. App., Jackson, Oct. 31, 2002).
However, absent an appeal, a petitioner has only one year from the date on which his or her judgment
becomes final in which to file for post-conviction relief. See Tenn. Code Ann. 40-30-102(a). As
set forth above, the judgment of a trial court becomes final thirty days after its entry, absent a timely
notice of appeal or post-trial motion. Tenn. R. App. P. 4 (a), (c); See Green, 106 S.W.3d at 648.
Here, however, the relevant “trigger” date was the date on which the trial court filed its corrected
judgment: January 10, 2001. See Manny T. Anderson v. State, No. M2002-00641-CCA-R3-PC,
2003 WL 2002092, at *4 (Tenn. Crim. App., Nashville, April 30, 2003) (holding that, when an
amended judgment was filed three years after the original entry of judgment, the post-conviction
limitations period began to run on the date the amended judgment was filed). Thus, the one-year
post-conviction limitations period began to run in January 2001 and expired in January 2002. The
Defendant did not file his petition until March 2004. The trial court was therefore correct in
dismissing the Defendant’s petitions as time-barred.

         The Defendant argues that the post-conviction statute of limitations does not apply when
the claim is to correct an illegal sentence, relying on this Court’s unpublished opinions in James
Gordon Coons, III v. State, No. 01C01-9801-CR-00014, 1999 WL 275009, at *3 (Tenn. Crim. App.,
Nashville, May 6, 1999), and Kevin Lavell Abston v. State, No. 02C01-9807-CR-00212, 1998 WL
906475, at *1 (Tenn. Crim. App., Jackson, Dec. 30, 1998). As corrected, however, the Defendant’s
sentence is not illegal. The Defendant’s argument that the post-conviction statute of limitations is
not applicable is misplaced and without merit.




                                                  -3-
        By his pleading, the Defendant is attempting to nullify a legal sentence and reinstate an illegal
one. There is no procedure available for attaining the Defendant’s objective.2 At best, the Defendant
would be entitled to have his plea set aside, allowing him to either re-plead to a legal sentence, or
be tried. In order to set aside his plea, however, the Defendant must proceed via a collateral attack
on his conviction, and the post-conviction avenue for this attack is no longer available because of
the passage of time.

        In sum, the original judgment entered against the Defendant with respect to his aggravated
kidnapping conviction set forth an illegal sentence. The trial court had the authority to correct the
judgment in order to set forth a legal sentence. Any abridgment of the Defendant’s rights caused by
the trial court’s action in correcting the judgment was a proper matter for a petition for post-
conviction relief. The time for filing such a petition expired in January 2002. The Defendant,
having failed to file his petition within the limitations period, is now time-barred from pursuing his
claim. The post-conviction court did not err in summarily dismissing the Defendant’s petitions, and
we therefore affirm the judgments of the post-conviction court.



                                                                 ___________________________________
                                                                 DAVID H. WELLES, JUDGE




         2
           Even were the Defendant to recast his pleading as one for a writ of habeas corpus, his efforts would be for
naught. A writ of habeas corpus may be granted where it is apparent from the face of the judgment or the record of the
proceedings upon which the judgment is rendered that a sentence is illegal. Stephenson v. Carlton, 28 S.W .3d 910 (Tenn.
2000). As explained above, the corrected judgment in this case -- the judgment under which the Defendant is being
confined -- does not reflect an illegal sentence. Accordingly, the Defendant is not entitled to habeas corpus relief. See
Michael D. O’Guin v. Myers, No. M2003-02846-CCA-R3-HC, 2004 W L 2290487 (Tenn. Crim. App., Nashville, Oct.
12, 2004) (petitioner being held pursuant to a judgment that corrected the initial judgment’s illegal sentence was not
entitled to habeas corpus relief because the amended judgment ordered the correct sentence and the correct conviction
and was therefore not void as illegal).

                                                          -4-
