Willie J. Odom v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY SESS ION, 1999 May 25, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk WILLIE J. ODUM, ) C.C.A. NO. 03C01-9803-CR-00107 ) Appe llant, ) ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

WIL LIE J. O DOM JOHN KNOX WALKUP Pro Se Attorney General and Reporter 7475 Cockrill Bend Ind. Rd. Nashville, TN 37243 MICH AEL J . FAHE Y, III Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

RANDALL E. NICHOLS District Attorney General

FRED BRIGHT Assistant District Attorney City-County Building Knoxivlle, TN 37902

ORDER FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE

ORDER

The petitioner, Willie J. Odom, appeals the order of the Kno x Coun ty Criminal Court sum marily dismissing his post-conviction petition without an evidentiary hearing or appointing counsel. Odom pled guilty in April 1996 to one (1) count of aggravated robbery and received a sentence of eight (8) ye ars. In January 1998, he filed the present petition alleging that counsel was ineffective, his guilty plea was not voluntary and he received an illegal sentence. The trial court dismissed the petition as barred by the one (1) year statute of limitations. See Tenn. Code Ann. § 40-30-202(a). After a review of the record before this Court, we affirm the judgment of the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

The petitioner claims his guilty plea to aggravated robbery violated principles of double jeopardy in that he also pled guilty in federal court to offenses arising out of the same incident. He argues that his conviction for aggravated robbery is void due to double jeopardy, and his sentence receive d as a result of such void co nviction is, therefore, illegal. Because an illegal sentence may be corrected at any time, see State v. Burkhart, 566 S.W .2d 871, 873 (Tenn. 197 8), the petitioner contends that the statute of limita tions d oes n ot app ly in this case. We disagree.

This state adheres to the principle of dua l sovereignty in that “succ essive prosecutions by different sovereigns do not subject [a defendant] to double jeopard y.” State v. Straw, 626 S.W.2d 286, 287 (Tenn. Crim. App. 1981); see also State v. Wyche, 914 S.W.2d 558, 561 (Tenn. C rim. App. 199 5). Furthermore, the petitioner’s Range I sentence of eight (8) years for a Class B felony is a leg al senten ce. See Tenn. C ode Ann . § 40-35-112 (2).

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The post-conviction petition was filed outside of the one (1) year statute of limitations, and the petitioner has cited no reason to justify tolling the statute. See Tenn. Code Ann. § 40-30-202(b). As a result, the trial court was without jurisdiction to consider the petition and properly dismissed the petition without an evidentiary hearing . Tenn. Co de Ann. § 4 0-30-206(b ).

IT IS, THEREFORE, ORDER ED that the judgment of the trial court is affirmed pursuant to Rule 20, Tennessee Court of Crimin al Appe als Rule s. It appearing that the petitioner is indigent, costs will be paid by the State of Tennessee.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ THOMAS T. WOODALL, JUDGE

___________________________________ L. TERRY LAFFERTY, SPECIAL JUDGE

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