Opinion
D.M. Guinn, Tommie Sue Smith, Johnson City, for plaintiff in error.
George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for the State.
BURNETT, Chief Justice.
A petition in the nature of a petition to rehear has been filed by the plaintiff in error requesting that, (1) he be given credit for a total of 117 days' confinement in jail on his present sentence, and (2) he be allowed to serve the remainder of his sentence in the Washington County jail. Likewise this petition requests that we remand the cause to the Criminal Court of Washington County for the purpose of giving that court jurisdiction to carry out these two requests.
Both of these issues were raised and discussed in our original opinion. We think that in view of the amendment to Sec. 40-3102, T.C.A., made by the General Assembly by Chapter 32 of the Public Acts of 1963, the first of these requests should be granted by us. This being true, it is ordered that the confinement in prison be credited by 117 days on his present prison sentence. The procedendo will so show.
As for the second issue raised, we find no reason to remand this cause to the lower court for the carrying out of this request because, as the statute now reads, we can, and are, allowing credit as shown by a proper certificate of the clerk of the court as to the time the plaintiff in error has spent in jail since the original sentence. As to the second proposition raised the question of remanding the cause to the trial court to allow the plaintiff in error to remain in the Washington County jail for the carrying out of this sentence, this must be denied for reasons stated in the last paragraph of our original opinion. If we were to grant this request, we would be doing indirectly what we have no authority to do directly. The plaintiff in error did not elect to make application to the lower court prior to his appeal in this case and a sound and orderly administration of justice in our Court dictates the uniform rule that the plaintiff in error must have been deemed to have waived his right to make such application when he did not make it before appeal.
The petition, therefore, is granted with respect to the allowance for the time served in jail, but the second request is denied.