Summary
holding there is no appeal as of right for a trial court's denial of a motion for pretrial jail credits under Rule 3 and even if the "motion could be recast as a motion to correct the sentence, a trial court's order denying a motion to correct a sentence is generally not appealable as a matter of right"
Summary of this case from Penny v. StateOpinion
No. E2003-01092-CCA-R3-CD.
Assigned on Briefs October 28, 2003.
February 18, 2004.
Appeal from the Criminal Court for Campbell County, No. 11061, E. Shayne Sexton, Judge.
Appeal Dismissed.
Greg Smith, Petros, Tennessee, pro se.
Paul G. Summers, Attorney General Reporter; Renee W. Turner, Assistant Attorney General; and Michael C. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Joseph M. Tipton, J., filed a concurring opinion.
OPINION
The defendant, Greg Smith, appeals the trial court's denial of his motion to increase the number of pretrial jail credits applied to his sentence. Because the defendant has no appeal as of right under Tennessee Rule of Appellate Procedure 3(b), the appeal is dismissed.
On March 1, 2002, the defendant entered a plea of guilt to one count of theft of property valued at more than $500. Pursuant to a plea agreement, the defendant received a sentence of two years to be served consecutively to the sentences he had received in two other cases. In addition, the agreement provided that the defendant would receive pretrial jail credit for the period from February 11, 2002, to March 1, 2002. Nearly one year later, the defendant filed a motion in the trial court contending that the appropriate amount of pretrial jail credits had not been applied to his sentence. One week later, the defendant filed a second motion seeking the application of the pretrial jail credits. The trial court dismissed the requests without a hearing, ruling that it was without jurisdiction because the defendant was within the custody of the Department of Correction and that the defendant had received the amount of pretrial jail credit contemplated by the plea agreement. A third pleading seeking pretrial jail credits was also dismissed by the trial court, which determined that it had already addressed the issue and had concluded that the defendant was not entitled to more pretrial jail credits.
In this appeal, the defendant contends that he has not received the jail credits to which he is entitled under the terms of the plea agreement. The state submits that the defendant has received the appropriate amount of credits and, in the alternative, that the appropriate avenue of relief on the issue of the application of pretrial jail credits is the Uniform Administrative Procedures Act. See Tenn. Code Ann. §§ 4-5-101 to -325.
Initially, it is apparent that the defendant filed his motions after the judgment of the trial court had become final and after he was in the custody of the Department of Correction. Generally, the trial court retains jurisdiction to modify a sentence once it becomes final only so long as the defendant is confined in the local jail or workhouse. See Tenn. Code Ann. §§ 40-35-212(c), -314(c); cf. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) ("[A] trial judge may correct an illegal, as opposed to an erroneous, sentence at any time, even if it has become final."). In consequence, the trial court was without jurisdiction to grant the defendant's request even if it had endeavored to do so. Moreover, no appeal as of right lies from the trial court's dismissal of the motions.
Tennessee Rule of Appellate Procedure 3 provides for an appeal as of right "from any judgment of conviction . . . from an order denying or revoking probation, and from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding." Tenn. R. App. P. 3(b). The trial court's denial of a motion seeking application of pretrial jail credits is not listed as an action from which an appeal as of right lies. Further, even if the defendant's motion could be recast as a motion to correct the sentence, a trial court's order denying a motion to correct a sentence is generally not appealable as a matter of right. Cox v. State, 53 S.W.2d 287, 293 (Tenn.Crim.App. 2001). In consequence, the defendant has no basis for appealing the trial court's denial of his motion because he has no appeal as a matter of right under Tennessee Rule of Appellate Procedure 3(b).
Regardless of the procedural deficiency, however, the record establishes that the defendant was awarded the number of pretrial jail credits contemplated by his plea agreement. The agreement, signed on March 1, 2002, states that the effective date of the sentence shall be February 11, 2002. The judgment form reflects that same effective date, awarding pretrial jail credit from February 11, 2002, until March 1, 2002. Further, the defendant is not entitled to credit for time spent on Community Corrections in an unrelated case. See Tenn. Code Ann. § 40-23-101(c) (stating that the defendant shall receive credit for any time served "arising out of the original offense for which the defendant was tried"); see also State v. Abernathy, 649 S.W.2d 285, 286 (Tenn.Crim.App. 1983); Trigg v. State, 523 S.W.2d 375, 376 (Tenn.Crim.App. 1975); State v. Jaye Wesley Mitts, No. E2002-00016-CCA-R3-CD (Tenn.Crim.App., at Knoxville, Dec. 5, 2003). Nor is he entitled to credit in this case for time served in the jail after the revocation of his Community Corrections sentence as that time was credited to the sentence imposed in that case. See Tenn. Code Ann. § 40-23-101(c); State v. Cavitt, No. E1999-00304-CCA-R3-CD (Tenn.Crim.App., at Knoxville, July 13, 2000) (rejecting "double-dipping" of credits for a period of confinement for two separate and unrelated charges).
Accordingly, the appeal is dismissed.
I agree with the result reached and most of the reasoning used in the majority opinion. However, I question the conclusion that the trial court was without jurisdiction to entertain a request to grant earned pretrial jail credits.
As the majority opinion notes, the state asserts that the petitioner's proper avenue of relief was through administrative procedures once he was in the custody of the Department of Correction (DOC). What is not noted, though, is that such procedures would be useless when the claim relates to the failure of the trial court to award pretrial jail credits. Pursuant to T.C.A. § 40-23-101(c), the trial court is required at the time of sentencing to allow a defendant pretrial jail credit. The DOC is powerless to change what the trial court awarded or failed to award.
The issue of interest, though, is whether the trial court has the power to award duly earned pretrial jail credit after the trial court has otherwise lost jurisdiction of the case. Also as the majority opinion notes, the trial court may correct an illegal sentence at any time. In this respect, a panel of the court of appeals has indicated its belief that the failure to award pretrial jail credits as mandated by T.C.A. § 40-23-101(c) renders the sentence illegal and subject to correction at any time. See Christopher Johnson v. Tennessee Department of Correction, No. 01-A-01-9602-CH-00064, Davidson County (Tenn.Ct.App. Aug. 7, 1996), app. denied (Tenn. Dec. 23, 1996). Also, a panel of this court has affirmed the trial court's award of pretrial jail credits after the defendant was in DOC custody.See Matthew P. Finlaw v. Anderson Co. Jail, No. 03C01-9212-CR-00448, Anderson County (Tenn.Crim.App. Aug. 13, 1993); State v. Christopher Oliver, No. 03C01-9212-CR-00447, Anderson County (Tenn.Crim.App. May 11, 1993). In State v. Henry, 946 S.W.2d 833, 834 (Tenn.Crim.App. 1997), this court stated that Finlaw and Oliver were based upon "unique circumstances which authorize the trial court to entertain requests for declaration of proper sentence credits." My concern is that the trial court either has jurisdiction to correct pretrial jail credits or it does not, "unique circumstances" aside. I believe that the trial court may correct judgments relative to earned, but not awarded, credits.
When certain action is mandated or prohibited by statute, the Tennessee Supreme Court has viewed sentences to be correctable, even after the judgments have become "final." In State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), the petitioner was in prison for burglary when he escaped. Five months after his recapture, he pled guilty to escape and received a one-year sentence. The judgment gave the petitioner jail credit for the five months since his recapture, thereby effectively running his escape sentence concurrently with the burglary sentence. However, pursuant to T.C.A. § 39-3802 (1975), punishment for escape from the DOC "shall . . . commence from and after the expiration of the original term." The supreme court concluded that the trial court's judgment "was in direct contravention of the express provisions of T.C.A. § 39-3802, and consequently was a nullity." 566 S.W.2d at 873. It stated that the trial judge "had both the power, and the duty, to correct the judgment . . . as soon as its illegality was brought to his attention." Id.
In Henderson v. State ex rel. Lance, 220 Tenn. 520, 419 S.W.2d 176 (1967), the Tennessee Supreme Court affirmed the grant of habeas corpus relief to a petitioner who pleaded guilty to armed robbery under an agreement by which his sentence would run concurrently with the sentence for which the petitioner had been on parole when he committed the robbery. Pursuant to T.C.A. § 40-3620, the commission of a felony by a parolee required the original sentence to be served before the parolee began serving the new sentence. The court noted that the state conceded that under the statute, the trial judge was powerless to order concurrent sentences. 220 Tenn. at 522, 419 S.W.2d at 177. More recently, in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas corpus petitioner pled guilty to several rapes and a burglary, receiving concurrent sentences. He sought to void the convictions, and his habeas corpus petition alleged that he was on bail from one of the rape charges when he committed the second rape and burglary. He relied upon T.C.A. § 40-20-111(d) and Rule 32(c)(3)(C) which provide that a sentence for a felony committed while released on bail shall be served consecutively regardless of what the judgment provides. The supreme court concluded that such concurrent sentencing would render the sentences illegal and create a void judgment for which habeas corpus relief would be available. 59 S.W.3d at 91.
As previously noted, T.C.A. § 40-23-101(c) provides that the trial court "shall, at the time the sentence is imposed . . . render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held . . . pending arraignment and trial. The defendant shall also receive credit on the sentence for the time served . . . subsequent to any conviction. . . ." As our supreme court has said, the awarding of such jail credit is mandatory. Stubbs v. State, 216 Tenn. 567, 576, 393 S.W.2d 150, 154 (1965). I believe these circumstances leave the power to correct the awarding of pretrial jail credits with the trial court.
However, I concur in the result reached in the majority opinion. The case is not properly before us.