        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs February 19, 2015 at Knoxville

              SAMUEL L. GIDDENS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Williamson County
                   No. II-1100-367-B    Timothy L. Easter, Judge



                 No. M2014-01484-CCA-R3-CD – Filed June 3, 2015


The appellant, Samuel L. Giddens, filed in the Williamson County Circuit Court a motion
to correct his sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging
that his sentences were illegal because he had not received mandatory pretrial jail credits.
The motion was summarily denied, and the appellant appeals this ruling. Upon review,
we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Samuel L. Giddens, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim R. Helper, District Attorney General; and Sean Duddy, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

       On November 6, 2001, the appellant was convicted in Williamson County in case
number II-1100-367-B of facilitation of possession of heroin with the intent to sell or
deliver and possession of cocaine with the intent to sell or deliver, Class C felonies. The
trial court sentenced the appellant as a Range II, multiple offender to concurrent
sentences of nine years and six months for each offense. The judgments of conviction,
which were entered on December 17, 2001, reflect that the appellant received nine days
and six hours of pretrial jail credit. The same day, the appellant posted an appeal bond.
On January 23, 2002, the appellant filed a notice of appeal to this court. This court‟s
opinion was filed on April 4, 2003, and the mandate was issued on June 10, 2003.
       On March 12, 2002, while the direct appeal of his Williamson County convictions
was pending, the appellant was taken into custody for offenses that were committed in
Davidson County.1 See State v. Samuel L. Giddens, No. M2012-00858-CCA-R3-CD,
2013 WL 1953498, at *1 (Tenn. Crim. App. at Nashville, May 13, 2013) (dismissing the
appeal of the denial of the appellant‟s motion to receive pretrial jail credits on his
Davidson County convictions). He remained in custody on the Davidson County
offenses until December 30, 2002, when he was transferred to the penitentiary to begin
serving his Williamson County sentences. Id. On April 4, 2004, the appellant was
convicted of the Davidson County offenses and received a sentence of fourteen years,
which was ordered to be served consecutively to the Williamson County sentences. 2

       On July 1, 2014, the appellant filed a motion to correct his Williamson County
sentences pursuant to Tennessee Rule of Criminal Procedure 36.1, alleging that his
sentences were illegal because he was not awarded mandatory pretrial jail credits from
March 13, 2002, through June 10, 2003. The trial court summarily denied the motion,
finding that the concurrent sentences of nine years and six months were within the range
for a Range II offender convicted of Class C felonies. The court noted that the
appellant‟s convictions and sentences had been upheld by this court on direct appeal and
on appeal after denial of post-conviction relief. The court further noted that the sentences
had expired. On appeal, the appellant challenges the trial court‟s ruling.

       Historically, “two distinct procedural avenues [were] available to collaterally
attack a final judgment in a criminal case B habeas corpus and post-conviction petitions.”
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004); see also State v. Donald Terrell, No.
W2014-00340-CCA-R3-CO, 2014 WL 6883706, at *2 (Tenn. Crim. App. at Jackson,
Dec. 8, 2014). However, effective July 1, 2013, the Tennessee Rules of Criminal
Procedure were amended with the addition of Rule 36.1, which provides in part:

               Either the defendant or the state may, at any time, seek the
               correction of an illegal sentence by filing a motion to correct
               an illegal sentence in the trial court in which the judgment of
               conviction was entered. For purposes of this rule, an illegal


1
  The appellant was ultimately convicted in Davidson County case number 2002-B-1184 of reckless
homicide, attempted especially aggravated robbery, and aggravated burglary. State v. Samuel L.
Giddens, No. M2005-00691-CCA-R3-CD, 2006 WL 618312, at *1 (Tenn. Crim. App. at Nashville, Mar.
13, 2006).
2
 The appellant refers to his Williamson County and Davidson County sentences as his “twenty-three (23)
year, six (6) month sentence.”
                                                 -2-
              sentence is one that is not authorized by the applicable
              statutes or that directly contravenes an applicable statute.

Tenn. R. Crim. P. 36.1(a); see Secdrick L. Booker v. State, No. M2014-00846-CCA-R3-
CD, 2014 WL 7191041, at *2 (Tenn. Crim. App. at Nashville, Dec. 18, 2014). The
requirements for a Rule 36.1 motion are more lenient than for a habeas corpus petition;
notably, in a Rule 36.1 motion, a defendant is required only to state a colorable claim in
the motion but is not required to attach supporting documents in order to survive
summary dismissal, and the motion may be filed “at any time,” even after the sentence
has expired. See State v. Sean Blake, No. W2014-00856-CCA-R3-CO, 2015 WL
112801, at *2 (Tenn. Crim. App. at Jackson, Jan. 8, 2015); State v. John Talley, No.
E2014-01313-CCA-R3-CD, 2014 WL 7366257, at *2 (Tenn. Crim. App. at Knoxville,
Dec. 26, 2014).

        If the motion states a “colorable claim that the sentence is illegal,” the trial court
shall appoint counsel and hold a hearing on the motion. See Tenn. R. Crim. P. 36.1(b).
“A sentence is not considered illegal when it is statutorily available but ordinarily
inapplicable to a given defendant; rather, an illegal sentence is one that is simply
unavailable under the Sentencing Act.” State v. Adrian R. Brown, No. E2014-00673-
CCA-R3-CD, 2014 WL 5483011, at *3 (Tenn. Crim. App. at Knoxville, Oct. 29, 2014)
(internal quotation marks and citation omitted); application for perm. to appeal granted,
(Tenn. May 15, 2015). Although Rule 36.1 does not define what constitutes a “colorable
claim,” this court has adopted the following definition: “[a] colorable claim is a claim . . .
that, if taken as true, in the light most favorable to the defendant, would entitle [the
petitioner] to relief.” State v. David Morrow, No. W2014-00338-CCA-R3-CO, 2014 WL
3954071, at *2 (Tenn. Crim. App. at Jackson, Aug. 13, 2014) (internal quotation marks
and citation omitted).

      The appellant claims his sentences are void because the trial court failed to award
him mandatory pretrial jail credits. Tennessee Code Annotated section 40-23-101(c)
provides:

              The trial court shall, at the time the sentence is imposed and
              the defendant is committed to jail, the workhouse or the state
              penitentiary for imprisonment, 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 in the city jail or juvenile court detention prior to
              waiver of juvenile court jurisdiction, or county jail or
              workhouse, pending arraignment and trial. The defendant
              shall also receive credit on the sentence for the time served in
                                             -3-
              the jail, workhouse or penitentiary subsequent to any
              conviction arising out of the original offense for which the
              defendant was tried.

        The awarding of pretrial jail credit is mandatory, and the failure to award pretrial
jail credits directly contravenes the requirements of Tennessee Code Annotated section
40-23-101(c) and results in an illegal sentence that is subject to correction under Rule
36.1. See Brown, No. E2014-00673-CCA-R3-CD, 2014 WL 5483011, at *3; see also
Tucker v. Morrow, 335 S.W.3d 116, (Tenn. Crim. App. 2009) (stating that a trial court‟s
failure to award mandatory pretrial jail credits results “in an illegal sentence, an
historically cognizable claim for habeas corpus relief”). Nevertheless, “„[i]t is only when
the time spent in jail or prison is due to or, as the statute says, „arises out of‟ the offense
for which the sentence against which the credit is claimed that such allowance becomes a
matter of right.‟” Id. (quoting Tucker, 335 S.W.3d at 123).

        The appellant alleges that he is entitled to pretrial jail credits from March 13,
2002, which was the date he “came back into confinement in Davidson County Case No.
2002 B1184,” through June 10, 2003, which was the date this court issued the mandate
on the appellant‟s direct appeal of the Williamson County convictions. However,
because the appellant was sentenced for the Williamson County offenses on December
17, 2001, any credits the appellant earned at that point were post-judgment credits, not
pretrial credits. See State v. Curtis Lynn Hearon, No. E2009-02352-CCA-R3-CD, 2010
WL 2787815, at *5 (Tenn. Crim. App. at Knoxville, July 15, 2010) (stating that the date a
judgment of conviction is entered is the “proper date for ending pretrial jail credit”).
Tennessee Code Annotated section 40-23-101(c) “requires that the trial court note on the
judgment of conviction the number of pre-sentencing jail credits but does not require the
trial court to include post[-]judgment jail credit in the judgment.” Yates v. Parker, 371
S.W.3d 152, 155 (Tenn. Crim. App. 2012). Therefore, “[t]he proper avenue to address
post-judgment jail credit for prisoners is through the TDOC administratively.” Id.

       Moreover, we note that this court has previously observed that the appellant has
already received pretrial sentencing credits from March 13, 2002, through December 30,
2002, on his Davidson County sentences. See State v. Samuel L. Giddens, Jr., No.
M2014-01505-CCA-R3-CD, 2015 WL 1472646, at *3 (Tenn. Crim. App. at Nashville,
Feb. 20, 2015), perm. to appeal denied, (Tenn. May 14, 2015); State v. Samuel L.
Giddens, No. M2012-00858-CCA-R3-CD, 2013 WL 1953498, at *1 (Tenn. Crim. App.
at Nashville, May 13, 2013). The appellant was taken into custody on March 13, 2002,
on the Davidson County charges; he was not serving his Williamson County sentences at
that time. On December 30, 2002, the appellant was transferred to the Tennessee
Department of Correction to begin serving his Williamson County sentences. Giddens,
No. M2012-00858-CCA-R3-CD, 2013 WL 1953498, at *1. “A defendant is not entitled
                                             -4-
to credit for time he spent in jail for other offenses.” State v. Michael Bikrev, No.
M2001-01620-CCA-R3-CD, 2002 WL 170734, at *7 (Tenn. Crim. App. at Nashville,
Feb. 4, 2002) (citing Trigg v. State, 523 S.W.2d 375 (Tenn. Crim. App. 1975)); see also
Christopher A. Johnson v. State, No. E2002-01208-CCA-R3-PC, 2003 WL 21145504, at
*2 (Tenn. Crim. App. at Knoxville, May 16, 2003).

      Based upon the foregoing, we conclude that the trial court did not err by
dismissing the appellant‟s motion to correct an illegal sentence.


                                               _________________________________
                                               NORMA McGEE OGLE, JUDGE




                                         -5-
