           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE

                STATE OF TENNESSEE v. FREDERICK CAVITT

                  Direct Appeal from the Criminal Court for Carter County
                          No. 10081 Robert E. Cupp, Trial Judge


                    No. E1999-00304-CCA-R3-CD - Decided July 13, 2000




While incarcerated in the Tennessee Department of Correction, the defendant was indicted for
aggravated assault, pled guilty to the lesser included offense of simple assault, and received a
sentence of eleven months and twenty-nine days. The defendant moved for pretrial jail credits, in
the amount of three hundred and twenty-one days, calculated from the day the arrest warrant was
served to the day the judgment was entered. We conclude that the defendant is not entitled to the
claimed jail credits and therefore affirm the trial court's order dismissing the defendant’s Motion to
Modify Judgment to Reflect Jail Credits. We modify the sentence to indicate service in either the
Carter County Jail or workhouse.

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

WILLIAMS, J., delivered the opinion of the court, in which WOODALL and GLENN, JJ., joined.

Frederick Cavitt, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter, R. Stephen Jobe, Assistant Attorney General, Joe
C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                           Introduction

        The defendant, Frederick Cavitt, was serving a sentence in the Tennessee Department of
Correction (TDOC) when he was served with an arrest warrant for aggravated assault. He pled
guilty to the lesser charge of simple assault, and he now claims that Tenn. Code Ann. § 40-23-
101(c)1 mandates application of pretrial jail credits against that misdemeanor sentence. The trial


       1
         While the defendant’s brief asserts that § 40-23-101(b) is the applicable statute, his claim
invokes Tenn. Code Ann. § 40-23-101(c).
court dismissed the defendant’s pro se Motion to Modify Judgment to Reflect Jail Credits after
concluding that the statute was inapplicable under these circumstances. After review, we affirm.

                                             Background

        The record is scanty. In June 1991, while incarcerated at Brushy Mountain Prison, the
defendant was served with an arrest warrant from the General Sessions Court of Carter County for
committing aggravated assault against Herbert R. Garrett.2 The Carter County Grand Jury returned
a true bill for the aggravated assault charge, and the defendant pled guilty to simple assault on May
4, 1992. The trial court sentenced him to eleven months and twenty-nine days, to be served in
TDOC consecutively to his prior sentence.

        On June 28, 1999, the defendant filed a pro se Motion to Modify Judgment to Reflect Jail
Credits in the Carter County Criminal/Circuit Court. In this motion, the defendant claimed
approximately three hundred and twenty-one days of pretrial jail credit, from the date of service of
the arrest warrant up to the date of entry of the judgment.

        In its order denying the motion, the trial court concluded that Tenn. Code Ann. § 40-23-101
did not secure credits for the defendant’s incarceration on a separate and unrelated offense. The trial
court granted nine days of jail credit, reflecting the interval that the Carter County Sheriff’s Office
had held the defendant during the pendency of the aggravated assault proceedings. From that order,
the defendant appeals.

                                               Analysis

                                             Jurisdiction

         The defendant’s eligibility for sentencing credits is a function of the language of the statutes
creating, authorizing, or defining such credits. “When an accused is taken into custody by the state,
Tennessee is required to credit the sentence with the time served in the jail pending arraignment and
trial as well as the time subsequent to any conviction arising out of the original offense for which
he was tried.” State v Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997). Awarding of these
credits is mandatory. See Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965).

        A trial court generally loses jurisdiction over a sentence after an inmate is in the custody of
TDOC. See Tenn. Code Ann. § 40-35-212(d). An inmate should address sentence reduction
credits concerns through the Uniform Administrative Procedures Act (APA). See Tenn. Code


        2
         The record does not establish why the defendant was originally incarcerated, but in May
1991, he was found guilty, after an administrative hearing, of assaulting a corrections officer. This
administrative finding altered his release eligibility, and the defendant contested that outcome in an
appeal unrelated to the instant appeal. See Frederick Wayne Cavitt v. Tennessee Dep’t of
Correction, No. 01A01-9712-CH-00713 (Tenn. Ct. App. filed April 23, 1999, at Nashville).

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Ann. § 4-5-101 to -325; Henry, 946 S.W.2d at 834. Should the inmate still be aggrieved, the
Chancery Court of Davidson County provides the next level of recourse. See Tenn. Code Ann. §
4-5-322(b)(1).

         This general rule is not absolute. If the state and petitioner agree that a defendant is entitled
to pretrial credits, see Matthew P. Finlaw v. Anderson County Jail, No. 03C01-9212-CR-00448
(Tenn. Crim. App. filed Aug. 13, 1993, at Knoxville); State v. Christopher Oliver, No. 03C01-9212-
CR-00447 (Tenn. Crim. App. filed May 11, 1993, at Knoxville), or if a trial court calculates pretrial
jail credits after a reversal and remand from an appellate court, see Henry, 946 S.W.2d at 834, those
situations constitute “unique circumstances which authorize the trial court to entertain requests for
declaration of proper sentence credits.” Id. Under some circumstances, “the trial court is certainly
in the best position to calculate pretrial jail credits.” Id. In the instant case, the defendant, convicted
and sentenced for a misdemeanor offense, should have been sentenced to service in the county jail
or workhouse. See Tenn. Code Ann. § 40-35-104(c)(4) - (6). A trial court does not lose all
jurisdiction over a defendant so convicted and incarcerated but rather may reduce or modify the
sentence during the term of service. See Tenn. Code Ann. § 40-35-314(c). Therefore, we conclude
that the trial court could properly determine the jail credits applicable to the misdemeanor sentence.
We amend the judgment, however, to reflect service of the sentence in either the Carter County Jail
or workhouse. See State v. Smith, 891 S.W.2d 922, 933-34 (Tenn. Crim. App. 1994).

                                       Relevance of the Statute

        The trial court concluded that the invoked statute simply did not apply. Tenn. Code Ann.
§ 40-23-101(b) addresses disparity between a person of means who can make bond, and financially
challenged persons who would remain incarcerated during the pendency of a criminal prosecution.
See State v. Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983). This Court has repeatedly
held that § 40-23-101(c) provides for credits against the sentence only if the incarceration, claimed
as a basis for the credits, arises from the offense for which the sentence was imposed. The statute
does not secure pretrial jail credits when a defendant: (1) confined in Federal Prison on separate
federal convictions is tried and found guilty of a Tennessee state charge; (2) is convicted and
incarcerated in another state after escaping the Tennessee prison system; or (3) escapes confinement
in Tennessee, is arrested and acquitted of charges in another state, and resists extradition back to
Tennessee for nearly one year. See Abernathy, 649 S.W.2d at 285-86; Majeed v. State, 621 S.W.2d
153, 154-55 (Tenn. Crim. App. 1981); Trigg v. State, 523 S.W.2d 375, 376 (Tenn. Crim. App.
1975). “It is only when the time spent in jail or prison is due to or, as the statute says, ‘arises out of’
the offense against which the claim is credited that such allowance becomes a matter of right.”
Trigg, 523 S.W.2d at 376.

        “Double-dipping” for credits from a period of continuous confinement in this state for two
separate and unrelated charges has been rejected by this Court. In Christopher Johnson v. Tennessee
Department of Correction, No. 95-2065-II (Tenn. Ct. App. filed Aug. 7, 1996), the defendant was
arrested, tried and convicted for burglary, and sentenced to fifteen years. At a subsequent and
separate trial, the jury found him guilty of another charge of second degree burglary, and the trial
court imposed a ten-year sentence to be served consecutively to the original sentence, for a total

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effective sentence of twenty-five years. The defendant remained incarcerated throughout the two
trials and convictions and was transferred to the penitentiary on May 3, 1998. A panel of this Court
concluded that the statute did not secure jail credits against both sentences from the defendant’s
incarceration. See also State v. Timothy S. Bradley, No. 01C01-9804-CC-00165 (Tenn. Crim. App.
filed Mar. 23, 1999, at Nashville) (The defendant, convicted of and imprisoned for an offense, would
not have been released on bond while awaiting trial on a separate, unrelated charge.).

                                            Conclusion

        In the instant case, the defendant, while serving time in TDOC for a prior felony conviction,
was served with an arrest warrant for a separate and unrelated offense. He is not entitled to pretrial
jail credits for his time served on the prior felony conviction. The judgment of the trial court is
affirmed but modified to show service in the Carter County Jail or workhouse.




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