         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs November 17, 2004

        STATE OF TENNESSEE v. IMMANUEL ELDRIDGE HARNEY

                         Appeal from the Circuit Court for Giles County
                              No. 9664    Robert L. Jones, Judge



                    No. M2003-03004-CCA-R3-CD - Filed January 12, 2005


The defendant, Immanuel Eldridge Harney, pled guilty to six counts of sale of one-half gram or more
of cocaine, a Class B felony, and pursuant to a plea agreement, the Giles County Circuit Court
sentenced him to twelve years incarceration for five of the counts and three years incarceration for
the sixth count. The court ordered that the defendant serve one of his twelve-year sentences
consecutively to the other four and that he also serve the three-year sentence consecutively to the five
twelve-year sentences for an effective sentence of twenty-seven years in the Department of
Correction (DOC). The defendant appeals from the Giles County Circuit Court order reducing his
sentences by six months, claiming that the trial court abused its discretion in failing to grant him a
greater reduction. The state appeals, contending that the trial court was without jurisdiction to
reduce the defendant’s sentence. We hold the trial court was without jurisdiction to reduce the
defendant’s sentence. We reverse the judgment of the trial court and remand the case for the entry
of a corrected judgment.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed, Case
                                        Remanded

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ALAN
E. GLENN , JJ., joined.

Keith R. Peterson, Pulaski, Tennessee (on appeal) and Lucy D. Henson, Pulaski, Tennessee (at trial),
for the appellant, Immanuel Eldridge Harney.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

       This case relates to the defendant’s selling cocaine. A Giles County Grand Jury indicted the
defendant on thirteen counts: two counts of sale of one-half gram or more of cocaine, two counts
of delivery of one-half gram or more of cocaine, four counts of sale of one-half gram or more of
cocaine in a school zone, four counts of delivery of more than one-half gram of cocaine in a school
zone, and one count of facilitation of the sale of one-half gram or more of cocaine. As a result of
plea negotiations, the defendant agreed to an effective sentence of twenty-seven years as a Range I,
standard offender with a release eligibility date of 30%, and he pled guilty on September 25, 2001.

        On February 6, 2002, the defendant filed a “Motion to Suppress the Giles County Sheriff
Department to Turn Petitioner over to the Tennessee Department of Corrections.” The defendant
alleged that he was only receiving jail credit of six days per month as opposed to sixteen days if he
were at a DOC facility. The trial court treated the motion as a motion for reduction of sentence
pursuant to Rule 35, Tenn. R. Crim. P., and on April 18, 2002, Circuit Court Judge Hargrove entered
the following order:

                       After [] testimony of witnesses and statements and argument
               of defendants and counsel for both sides in this matter, this Court
               finds that there is no constitutional right under the United States
               Constitution or the State of Tennessee constitution, per se, for
               inmates to receive jail credits. France v. Bradley, 922 S.W.2d 118,
               (Ct. App. 1995). This court does, however, find that due to the
               disparity in the programs in the various county jails around the State
               of Tennessee, that in this instance, due to the lack of available
               programs in the Giles County Jail, there is a violation of equal
               protection.
                       WHEREFORE, IT IS HEREBY ORDERED ADJU[D]GED
               AND DECREED that there is a violation of Equal Protection due to
               disparity in the credit programs in the various county jails in the State
               and the lack of credit programs in the Giles County Jail. The Sheriff
               shall make an effort to have these Department of Correction inmates
               now housed at the Giles County jail transferred to a Department of
               Correction Facility as soon as possible. This matter may be reviewed
               for compliance.

On July 23, 2002, Circuit Court Judge Jones entered an order addressing the defendant’s Rule 35
motion stating,

               1. That the Defendant’s Rule 35 Motion is hereby denied on the basis
               that the defendant is bound by the plea agreement entered on August
               14, 2001.
               2. That the Court finds that at the time the plea agreement was taken
               that is was not anticipated that the Defendant would remain in the
               Giles County Jail for an extended period of time. The Court finds
               that if the Defendant, Immanuel Harney, is in the Giles County Jail



                                                 -2-
               on September 25, 2002, then the Court may exercise its jurisdiction
               pursuant to TCA 40-35-212(d).
               3. The Court further finds that the defendant may file a motion to be
               heard as to a sentence modification, and the Court stated it is inclined
               to amend the sentences to twelve (12) years running concurrent. The
               Court will conduct a hearing as to the reasons why this inmate has not
               been sent to the Tennessee Department of Corrections. The court will
               hear testimony from the Tennessee Department of Corrections as well
               as Sheriff Eddie Bass as to the reasons for delay in transporting this
               Defendant to the Tennessee Department of Corrections.

         The Giles County Sheriff’s Department did not transfer the defendant to the DOC until
October 2, 2002, eight days after the trial court’s deadline. On October 13, 2002, the defendant, pro
se, filed a motion for reduction of his sentence “as directed by the Court.” The defendant also filed
a “Memorandum of Points and Authorities” requesting that the trial court reduce his sentence to
twelve years by ordering all of his sentences to be served concurrently. After conducting a hearing
on the defendant’s motion, Judge Jones entered an order on October 8, 2003, reducing the
defendant’s effective sentence to twenty-six years and six months by modifying the defendant’s
sentence for count one regarding the sale of cocaine from twelve years to eleven years and six
months. The defendant appeals, claiming the trial court abused its discretion by only reducing his
sentence six months when “it was originally inclined to award a sentence reduction of fifteen years.”
The state claims, among other things, that the trial court erred in reducing the defendant’s sentence
by six months because it lost jurisdiction when the defendant was transferred to the custody of the
DOC. We agree with the state.

       T.C.A. § 40-35-212(d) provides that the trial court

               shall retain full jurisdiction over a defendant sentenced to the
               department during the time the defendant is being housed in a local
               jail or workhouse awaiting transfer to the department. Such
               jurisdiction shall continue until such time as the defendant is actually
               transferred to the physical custody of the department.

The record reflects that the defendant was transferred to the custody of the DOC on October 2, 2002.
It also reflects that the trial court’s order reducing the defendant’s sentence by six months was
entered on October 8, 2003. Because the trial court lost jurisdiction to modify the defendant’s
sentences on October 2, 2002, its order reducing the defendant’s sentence by six months was a
nullity. We reverse the judgment of the trial court and remand this case for the entry of a corrected
judgment to reinstate the twelve-year sentence for count one.


                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE


                                                 -3-
