         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                    August 17, 2004 Session

                STATE OF TENNESSEE v. DONALD W. STRECK

                       Appeal from the Criminal Court for Knox County
                             No. 76771    Ray L. Jenkins, Judge



                  No. E2003-01991-CCA-R3-CD - Filed November 29, 2004


The state appeals from the Knox County Criminal Court’s order granting Donald W. Streck’s motion
to receive jail credits toward his Tennessee sentence for time that he spent in federal custody serving
federal sentences. Because the lower court did not have jurisdiction to entertain the motion, we
reverse.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Reversed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

Bruce E. Poston, Knoxville, Tennessee, for the Appellee, Donald W. Streck.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Jeff Blevins, Assistant District Attorney General,
for the Appellant, State of Tennessee.

                                             OPINION

                 In 1996, Donald W. Streck was convicted in Knox County Criminal Court upon his
guilty plea to theft of property valued at more than $60,000. He was sentenced to serve twelve years
in the Department of Correction, to be served consecutively to previously imposed federal sentences.
Streck was incarcerated in the federal system at the time of his Tennessee conviction. Thereafter,
he received additional federal convictions, for which the sentences were to be served consecutively
to “all other sentences.” Streck served all of his federal sentences and was then transferred to the
custody of the Tennessee Department of Correction. Because of the federal sentences imposed after
the Tennessee conviction took place, Streck’s actual release date from federal custody was later than
the date on which it was originally anticipated that he would be released to begin serving the
Tennessee sentence. The Department of Correction calculated the commencement date of the
defendant’s Tennessee sentence from the date he actually came into its custody, rather than the date
that it was originally envisioned at the time of Tennessee sentencing that he would commence
serving the Tennessee sentence. In other words, the Department of Correction did not give the
defendant credit toward service of the Tennessee sentence for the additional time Streck spent in the
federal system serving the additional federal sentences.

               Aggrieved of this calculation, Streck filed a pro se Motion to Correct Order of
Judgment. He asked the lower court to issue an order clarifying that the sentence for his Tennessee
conviction commenced running on the day following his parole eligibility date for the federal
convictions that he had received prior to the Tennessee conviction. Alternatively, Streck sought for
the lower court to order that credit for the Tennessee sentence should commence on the day
following his actual “max out” date for the prior federal convictions.

                The state opposed Streck’s motion in the lower court. After hearing arguments, the
lower court ordered the Department of Correction to award Streck credit toward his state sentence
for the time period following his completion of service of the ten-year federal sentence, during which
time Streck remained in federal custody serving the additional federal sentences he received after
his Tennessee conviction.

               The state appealed the order, and the issue is now before this court.

                 We begin our review by noting that the state, as it aptly concedes, improperly filed
its appeal pursuant to Tennessee Rule of Appellate Procedure 3, notwithstanding that it has no appeal
as of right from a trial court’s order addressing jail credits. See Tenn. R. App. P. 3(b); State v. Greg
Smith, No. E2003-01092-CCA-R3-CD (Tenn. Crim. App., Knoxville, Feb. 18, 2004). In a footnote
in its brief, the state urges us to consider the issue under our powers of certiorari review.
See generally Tenn. Code Ann. § 27-8-101 (2000). The weakness in this argument, of course, is
that the state did not pursue this route in the first place. However, this court has the authority, when
the interests of justice so compel, to treat an improperly filed appeal as a petition for writ of
certiorari. State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998). The case before us
presents compelling circumstances, and we elect to consider the matter under our powers of
certiorari review. See id.

                 Thus, we move on to the question at hand - - whether the lower court erred in granting
Streck jail credit toward his state sentence for time that he spent in federal custody. We hold that
it did because the court was without jurisdiction to consider the motion. At the time that Streck
brought his motion, the Tennessee judgment had long since become final. As we have noted in the
past, a motion to correct a sentence or judgment is not cognizable after the judgment has become
final unless it is flawed to the point of voidness. Cox v. State, 53 S.W.3d 287 (Tenn. Crim. App.
2001). Furthermore, Streck was already in the custody of the Department of Correction. It is well
settled law that claims regarding jail credits generally must be addressed through the Uniform
Administrative Procedures Act, Tenn. Code Ann. §§ 4-5-101 et seq. (1998 & Supp. 2003), once an
inmate is in the custody of the Department of Correction. State v. Henry, 946 S.W.2d 833, 834
(Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-212(c) (2003) (trial court retains jurisdiction
until defendant is in the custody of Department of Correction).


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               Because it lacked jurisdiction to entertain the motion, the lower court should have
dismissed it. Accordingly, we reverse the lower court’s order granting relief.




                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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