             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                Assigned on Briefs September 22, 2004

                    CHARLES MULLINS v. STATE OF TENNESSEE

                            Appeal from the Circuit Court for Maury County
                              No. 9679    Robert L. Holloway, Jr., Judge


                        No. M2004-00722-CCA-R3-CD - Filed October 26, 2004


The Appellant, Charles Mullins, proceeding pro se, appeals the Maury County Circuit Court’s
summary dismissal of his motion to correct an illegal sentence. On appeal, Mullins argues that his
effective thirty-two-year sentence for two counts of aggravated sexual battery is illegal because (1)
the judgment forms provide for an improper release eligibility date and (2) the trial court failed to
award pretrial jail credits on the judgment forms. Finding merit to the Appellant’s contentions, we
remand for further proceedings consistent with this opinion.

          Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Charles Mullins, Pro Se, Clifton, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Rachel E.
Willis, Assistant Attorney General; Mike Bottoms, District Attorney General, for the Appellee, State
of Tennessee.

                                                      OPINION

                                               Factual Background

        A Maury County grand jury charged the Appellant with three counts of aggravated sexual
battery, all alleging the victims were less than 13 years of age. See Tenn. Code Ann. § 39-13-
504(a)(4) (2003). In count one, the Appellant was accused of the aggravated sexual battery of K.B.,1
a child less than 13 years of age, between August and September of 1995. In count two, the
Appellant was accused of the aggravated sexual battery of T.S., a child less than 13 years of age,



         1
          In order to protect the identity of minor victims of sexual abuse, it is the policy of this court to refer to the
victims by their initials. State v. Schimpf, 782 S.W .2d 186, 188 n.1 (Tenn. Crim. App. 1989).
between August and September of 1995. In count three, the Appellant was accused of the aggravated
sexual battery of E.C., a child less than 13 years of age, on November 16, 1995.

        As a result of a three-day jury trial, the Appellant was found guilty in counts one and three
of the aggravated sexual battery of K.B. and E.C. State v. Charles D. Mullins, No. 01C01-9709-CC-
00388 (Tenn. Crim. App. at Nashville, Apr. 21, 1999). In count two, the Appellant was found not
guilty as to the child, T.S. Id. Following a sentencing hearing, the trial court imposed consecutive
sixteen-year sentences. The judgment forms indicate that the Appellant was sentenced as a Range
II offender with handwritten notations that service of the total sentence is at 85%.2 The Appellant’s
convictions and sentences were affirmed by this court on direct appeal. Id. No permission to appeal
was filed.

         On February 23, 2004, the Appellant filed a “Motion to Correct Illegal sentence,” alleging
that his sentences were illegal because (1) an improper release eligibility date was noted on the
judgment forms and (2) the judgment forms did not reflect his pretrial jail credits. On February 25,
2004, the trial court summarily dismissed the motion without a hearing. In dismissing the motion,
the trial court concluded:

                  Mr. Mullins avers that the sentence imposed by Judge William B. Cain on
         January 22, 1997, was an illegal sentence, because Mr. Mullins was found to be a
         Range II offender under the Sentence Reform Act of 1989, but was ordered to serve
         eighty-five (85%) of his sentence, rather than the standard thirty-five (35%) for
         Range II offenders. Mr. Mullins also avers that the Judgements do not reflect jail
         credits.

                 Mr. Mullins was convicted by a jury of two (2) counts of aggravated sexual
         battery (Tenn. Code Ann. § 39-13-504). Mr. Mullins was sentenced to sixteen (16)
         years on each count, and the sentences were run consecutively. The total effective
         sentence was thirty-two (32) years at eighty-five (85%).

                  Tenn. Code Ann. § 40-35-501 states:

                  “(i)(1) There shall be no release eligibility for a person committing
                  an offense, on or after July 1, 1995, that is enumerated in section
                  (i)(2). Such person shall serve one hundred percent (100%) of the
                  sentence imposed by the court less sentence credits earned and
                  retained. However, no sentence reduction credits authorized by
                  section 41-21-236 shall operate to reduce the sentence imposed by the
                  court by more than fifteen percent (15%).


         2
          Rule 17 of the Tennessee Rules of the Supreme Court provides for the use of a uniform judgment document.
The document appended to this rule contains a category for violent offenders, which indicates that service of the sentence
is at 100%. However, such a category was not provided for on the judgment forms used in the present case.

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                (2) The offenses to which the provisions of subsection (i)(1) apply are:

                . . . (H) aggravated sexual battery. . . .”

                The date of the offense shown on the Judgments in Case No. 9679 was
        November 16, 1995, in Count 1, and August/September, 1995 in Count 3. Both
        offense dates were after July 1, 1995, the effective date set forth in the code section
        cited above. The judgment forms provide for the maximum sentence credits, fifteen
        percent (15%).

This timely appeal followed.
                                              ANALYSIS

         As an initial matter, we note that the Appellant seeks to appeal as of right from the trial
court’s order dismissing his motion for correction of an illegal sentence. However, as pointed out
by the State, Rule 3(b) of the Tennessee Rules of Appellate Procedure does not permit a direct appeal
of a trial court’s dismissal of a motion to correct an illegal sentence. Tenn. R. App. P. 3(b); see also
State v. Cox, 53 S.W.3d 287, 293 (Tenn. Crim. App. 2001). The proper method for a defendant to
attack an illegal or void sentence is through a petition for habeas corpus relief, the denial of which
by a trial court can be directly appealed to this court. Tenn. Code Ann. § 29-21-127(a) (2000); Tenn.
R. App. P. 3(b); Cox v. State, 53 S.W.3d 287, 294 (Tenn. Crim. App. 2001). The Appellant has
failed to follow the statutory procedures for filing a petition for habeas corpus relief, and we will not
treat his appeal as such. In rare circumstances, when a Rule 3 appeal is not available to a defendant,
this court may treat an appeal as a petition for writ of certiorari. Tenn. Code Ann. § 27-8-101
(2000); Cox, 53 S.W.3d at 294. The writ of certiorari should be granted where the trial court
exceeded the jurisdiction conferred or was acting illegally and, when in the judgment of the court,
there is no other plain, speedy, or adequate remedy. Tenn. Code Ann. § 27-8-101; Cox, 53 S.W.3d
at 294. In the present case, we believe that it is in the interest of justice and judicial economy to
consider this appeal as a petition for writ of certiorari and to deal with the petition on the merits.

I.      Release Eligibility Date

        First, the Appellant contends that:

        After Appellant was tried and convicted and the judgment’s [sic] had been entered,
        that someone changed his sentence structure and stated the sentence was to be served
        at 85% rather than the 35% ordered by the trial court originally.

The Appellant was convicted of two counts of aggravated sexual battery, one count occurring
between August and September of 1995 and the other count occurring on November 16, 1995. The
Tennessee Criminal Sentencing Reform Act of 1989 specifically provides:




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               (1) There shall be no release eligibility for a person committing an offense,
       on or after July 1, 1995, that is enumerated in subdivision (2). Such person shall
       serve one hundred percent (100%) of the sentence imposed by the court less sentence
       credits earned and retained. However, no sentence reduction credits authorized . . .
       shall operate to reduce the sentence imposed by the court by more than fifteen
       percent (15%).

               (2) The offenses to which the provisions of subdivision (1) apply are:

               ...

               (H) Aggravated Sexual Battery. . . .

Tenn. Code Ann. § 40-35-501(i)(1), (2)(H) (2003) (emphasis added). Regardless of whether the trial
court sentenced the Appellant to serve 35% or 85% of his sentences before becoming eligible for
parole, Tennessee Code Annotated section 40-35-501(i)(1) and (2) mandates that 100% of the
sentence imposed for aggravated sexual battery be served in confinement. Barry Dunham v. State,
No. M2000-02557-CCA-R3-CD (Tenn. Crim. App. at Nashville, Feb. 11, 2002); State v. Howard
Buchanan, No. M2000-00878-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 16, 2001), perm.
to appeal denied, (Tenn. 2001). A sentence imposed in direct contravention of a statute is illegal.
Barry Dunham, No. M2000-02557-CCA-R3-CD (quotation omitted); see also State v. Burkhart, 566
S.W.2d 871, 873 (Tenn. 1978). “As a general rule, a trial judge may correct an illegal, as opposed
to a merely erroneous, sentence at any time, even if it has become final.” Burkhart, 566 S.W.2d at
873 (citation omitted). In this case, the Appellant’s convictions resulted from jury verdicts. 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. Accordingly, we remand this case for correction of the judgment forms
to reflect that the Appellant is sentenced in each count as a 100% violent offender pursuant to
Tennessee Code Annotated section 40-35-501(i).

II.    Pretrial Jail Credits

       Next, the Appellant argues that:

       When an official judgment is entered by a court in a criminal case, it is required that
       all judgments reflect all applicable jail days/credits and or applicable behavior
       credits. See T.C.A. § 40-23-101(d). This was not complied with in the case at bar.

Generally, once an inmate is in the custody of the Department of Correction (DOC), the proper
avenue to address sentence reduction credits is through the Administrative Procedures Act,
Tennessee Code Annotated sections 4-5-101 to 325 (1998). State v. Henry, 946 S.W.2d 833, 834
(Tenn. Crim. App. 1997). Our court has recognized unique circumstances which authorize the trial
court to entertain requests for declaration of proper sentence credits. Id. (citing Matthew P. Finlaw
v. Anderson County Jail, No. 03C01-9212-CR-00448 (Tenn. Crim. App. at Knoxville, Aug. 13,


                                                  -4-
1993); State v. Christopher Oliver, No. 03C01-9212-CR-00447 (Tenn. Crim. App. at Knoxville,
May 11, 1993)). The instant case calls for similar relief.

       Pursuant to Tennessee Code Annotated section 40-23-101(c) (2003), the trial court is
required at the time of sentencing to allow a defendant pretrial jail credit. Tennessee Code
Annotated section 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, 393
S.W.2d 150, 154 (Tenn. 1965). Moreover, the DOC may not alter the judgment of the trial court in
any respect. Burkhart, 566 S.W.2d at 873.

        In dismissing the Appellant’s motion, the trial court stated, “The judgment forms provide for
the maximum sentence credits, fifteen percent (15%).” This conclusion is in direct contravention
of our sentencing statutes. The Appellant is to be sentenced as a 100% violent offender pursuant to
Tennessee Code Annotated section 40-35-501(i)(1), (2)(H), and the power to reduce the Appellant’s
sentence by 15% lies with the DOC, not the trial court. Moreover, any award of credits by the DOC
to the Appellant after he is incarcerated does not circumvent his entitlement to pretrial jail credits
in accordance with Tennessee Code Annotated section 40-23-101(c).3

         We have previously concluded that the judgment forms provide for an improper release
eligibility date and remanded the case for entry of corrected judgment forms. After a reversal and
remand from an appellate court, the trial court is certainly in the best position to calculate pretrial
jail credits. Henry, 946 S.W.2d at 834. Therefore, the case is remanded for a determination of the
Appellant’s entitlement to pretrial jail credits and, any such entitlement, shall be reflected on the
corrected judgment forms.




         3
            The judgment forms in each of the Appellant’s aggravated sexual battery convictions show no award of pretrial
jail credits. In his petition, the Appellant alleges that he is entitled to 431 days jail credit for pretrial detention during
the period November 17, 1993 through his sentencing date of January 22, 1997.

                                                             -5-
                                          CONCLUSION

        Consistent with this opinion, the case is remanded for the entry of corrected judgment forms
to reflect any entitlement of the Appellant to pretrial jail credits and that the Appellant is sentenced
as a 100% violent offender.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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