         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     May 21, 2002 Session

         STATE OF TENNESSEE v. JOHN TRAVIS COLLINS, ALIAS

                   Direct Appeal from the Criminal Court for Knox County
                          No. 55819    Mary Beth Leibowitz, Judge



                                 No. E2001-01301-CCA-R3-CD
                                       August 27, 2002

The State challenges the trial court’s jurisdiction to modify sentence more than six years after
judgment. Generally a trial court would not have jurisdiction to modify a sentence more than 120
days after judgment becomes final. However, we conclude that where the defendant was never in
the physical custody of the Department of Correction, jurisdiction to modify sentence remained in
the trial court. We affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
NORMA MCGEE OGLE , JJ., joined.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; and Patricia Cristil and Steven C. Garrett,
Assistant District Attorneys General, for the appellant, State of Tennessee.

James A.H. Bell (at trial), Steven Oberman (at trial), and Tommy K. Hindman (on appeal),
Knoxville, Tennessee, for the appellee, John Travis Collins, Alias.


                                             OPINION

        In February of 1995, the defendant, John Travis Collins, pled guilty to vehicular homicide,
a Class C felony. Pursuant to a plea agreement, he was sentenced to five years with all but nine
months to be served on probation. Pursuant to Tennessee Code Annotated section 40-35-314, the
trial court ordered the defendant to serve the nine months confinement in the Knox County Penal
Farm. In addition, the defendant was ordered to pay $50,000.00 restitution to the victim’s family,
and his driving privileges were suspended for a period of nine years. In March of 2001, the
defendant filed a motion for release from probation and modification of sentence, requesting the trial
court to modify the judgment and restore his driving privileges. The trial court granted the
defendant’s motion and restored his driving privileges. The State filed this timely appeal contending
that the trial court was without jurisdiction to modify its judgment more than six years after it
became final.

         The defendant’s conviction for vehicular homicide resulted from an automobile accident
which was caused by the defendant’s vehicle striking the rear of the victim’s vehicle. The victim
died as a result of the accident, and a blood alcohol test revealed that the defendant’s blood alcohol
content was .25 at the time of the accident. At the hearing on the defendant’s motion for release
from probation and restoration of driving privileges, the defendant asserted that he had fulfilled his
restitution obligation, refrained from driving for seven years, completed DUI driving school, and
undergone material changes in his health and marital status.1 At the time of the hearing, the
defendant was employed, drug free, and married with a nineteen-month-old baby. The victim’s
family attorney also appeared at the hearing and informed the court that the family was aware of the
defendant’s change in circumstances. He further stated that the defendant had paid restitution ahead
of schedule, and the victim’s family had no objection to restoration of the defendant’s driving
privileges.

         On appeal, the State argues that the trial court did not have jurisdiction to modify the
defendant’s sentence more than 120 days after the judgment became final and that the nine-year
revocation was part of the plea agreement which should not be altered. We disagree. While we
acknowledge that the trial court normally does not have jurisdiction or authority to change the
sentence in any manner once the judgment becomes final, Tennessee Code Annotated section 40-35-
319(b), we conclude that this case falls within the exception provided in Tennessee Code Annotated
section 40-35-212. “Unless the defendant receives a sentence in the department [of correction], the
[trial] court shall retain full jurisdiction over the manner of the defendant’s sentence service.” Tenn.
Code Ann. § 40-35-212(c). Furthermore, subsection (d) provides:
         Notwithstanding the provisions of subsection (c), the 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.
Id. at (d).

        In the instant case, the defendant was sentenced to five years in the Tennessee Department
of Correction. However, with regard to the manner of service, the trial court ordered the sentence
to be served in split confinement with nine months confinement at the Knox County Penal Farm and
four years and three months on supervised probation. The judgment reflects that the trial court relied
on Tennessee Code Annotated section 40-35-314(d), which provides that “if the sentence is eight
(8) years or less and combined with periodic or split confinement not to exceed one (1) year, the
court shall designate the place of confinement as a local jail or workhouse.” We note that subsection
(c) additionally provides that “the [trial] court shall retain full jurisdiction over the defendant during


        1
            The defendant had apparently developed some health problems which precipitated his need to drive on
occasion in order to ge t medical treatm ent.

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the term of such sentence and may reduce or modify the sentence or may place the defendant on
probation supervision where otherwise eligible.” Tenn. Code Ann. § 40-35-314(c).

        Because the instant defendant was sentenced to less than one year of continuous confinement
with the balance of his sentence to be served on probation, he was properly ordered to serve the term
of confinement in the local jail. In addition, it is clear from the record that the defendant was never
transferred to the physical custody of the Tennessee Department of Correction. As such, the trial
court retained full jurisdiction over the defendant. Tenn. Code Ann. §§ 40-35-212(c); 40-35-314(a),
(c). This issue is without merit.

       Accordingly, the judgment of the trial court is affirmed.




                                                              _______________________________
                                                               JOHN EVERETT WILLIAMS, JUDGE




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