                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs May 31, 2002

           MARSHALL MOFFETT v. TENNESSEE DEPARTMENT
                       OF CORRECTION

                    Appeal from the Chancery Court for Davidson County
                        No. 01-805-II   Carol McCoy, Chancellor



                  No. M2001-03011-COA-R3-CV - Filed December 5, 2002


Petitioner filed, pro se, a “Petition for Nunc Pro Tunc” in which he asserted that he was presently
confined and that the defendant added 1775 days to his sentence unlawfully. The trial court granted
the defendant’s Motion for Summary Judgment and we affirm the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

Marshall Moffett, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dawn
Jordan, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

                                            OPINION

        Marshall Moffett was originally incarcerated September 26, 1985 on a twenty year sentence
for aggravated sexual battery. While serving this sentence he escaped from custody on November
25, 1989, and was not returned to custody until October 5, 1994, after having spent a total of 1775
days on escape status. The prison disciplinary board found him guilty of escape but issued only a
written warning and did not order any loss of sentence reduction credits that Petitioner had earned
prior to his escape. He was thereafter found guilty in Davidson County Criminal Court of escape
and received a one year sentence to be served consecutively to his prior twenty year sentence. He
asserts that because the prison disciplinary board did not assess the additional 1775 days spent on
escape status, TDOC could not use same to extend his sentence.

       In granting the motion of TDOC for summary judgment, the trial court held:
        Petitioner, an inmate in the custody of the Tennessee Department of
Correction (“TDOC”), has filed an action seeking recalculation of his sentence
credits. This action will be treated as a petition for declaratory judgment pursuant to
the Uniform Administrative Procedures Act, T.C.A. § 4-5-101, et seq. As Petitioner
has paid the filing fee in accordance with the Court’s order of August 22, 2001, the
case will be allowed to proceed.
        This matter is before the Court on Respondent’s Motion for Summary
Judgment, Petitioner’s “Motion for Judgment for Failure of Respondents’ to Serve
Answers to Interrogatories and Produce Documents” and Petitioner’s motion to
expedite the hearing of this matter. The motion to expedite is now moot and need not
be addressed.
        In his “Motion for Judgment for Failure of Respondents’ to Serve Answers
to Interrogatories and Produce Documents,” Petitioner seeks a default judgment
against Respondent for its failure to respond to his interrogatories. However,
T.R.C.P. 55.04 provides that no judgment by default shall be issued against the state
of Tennessee or one of its officers or agencies unless the claimant establishes his
claim or right to relief by evidence satisfactory to the court. As the Petitioner has not
yet provided sufficient evidence to establish a right to relief in this matter, his motion
for a default judgment is denied.
        According to the affidavit of Faye Claud, Manager of Sentence Information
Services for TDOC, Petitioner was sentenced on September 26, 1985 to twenty years
imprisonment for Aggravated Sexual Battery. On November 25, 1989, Petitioner
escaped from custody. He was returned to incarceration on October 5, 1994. A total
of 1,775 days of dead time was applied to his sentence to account for the time not
served, thereby extending all his release dates. The prison disciplinary board found
Petitioner guilty of the infraction of escape and gave him a written reprimand;
however, the board did not take sentence credits away from Petitioner as a result of
this disciplinary action. On November 10, 1994, a Davidson County Criminal Court
imposed an additional one year sentence on Petitioner for the offense of Escape,
ordering that this sentence be served consecutive to his original sentence.
        Rule 56.03 of the Tennessee Rules of Civil Procedure provides that summary
judgment is appropriate where: (1) there is no genuine issue of material fact relevant
to the claim or defense contained in the motion, Byrd v. Hall, 847 S.W.2d 208, 210
(Tenn. 1993); and (2) the moving party is entitled to a judgment as matter of law on
the undisputed facts. Anderson v. Standard Register Co., 857 S.W.2d 555, 559
(Tenn. 1993). The moving party has the burden of proving that its motion satisfies
these requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991).
Courts should grant a summary judgment only when both the facts and the
conclusions to be drawn from the facts permit a reasonable person to reach only one
conclusion. Byrd, 847 S.W.2d at 210-11.
        Petitioner alleges that he has been wrongfully deprived of 1,775 days of
sentence credits, but he does not dispute any material facts. He does not deny that
he escaped from prison during the time period in question. He contends only that


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      TDOC was without legal authority to automatically extend his sentence by the
      amount of time he spent on escape, arguing that he has “personal knowledge that not
      all prisoners’ [sic] have their sentences extended by the number of days they spend
      on escape or extended by any amount.”
               A review of Tennessee case law shows that prisoners are not entitled to credit
      for time spent incarcerated in other jurisdictions while they fight extradition. State
      v. Silva, 680 S.W.2d 485 (Tenn. Crim. App. 1984). Nor are prisoners entitled to
      credit for time spent incarcerated in another jurisdiction on unrelated charges.
      Majeed v. State, 621 S.W.2d 153 (Tenn. Crim. App. 1981). They are not entitled to
      garner sentence credits for the “dead time” spent while on escape. Turnley v.
      Tennessee Department of Correction, 1997 WL 638418 (Tenn. Ct. App. 1997). And
      by the same token, prisoners are not entitled to credit for the days actually spent at
      large while on escape from the prison. Wilson v. State, 1993 WL 134068 (Tenn.
      Crim. App. 1993).
               Petitioner cites to TDOC policies and procedures stating that a TDOC
      disciplinary board must follow certain procedures if an inmate is to be punished by
      extending his sentence. Petitioner is under the misconception that TDOC is
      punishing him by adding back to his sentence time never served, i.e., the 1,775 days
      he was “on the street.” This is not the case. TDOC is responsible for calculating the
      sentence expiration date and the earliest release date of any felony offender sentenced
      to the department. T.C.A. § 40-28-129. In the present case, TDOC simply corrected
      Petitioner’s sentence calculation to [sic] reflect the time he did not serve. These days
      were not “earned” by Petitioner and he has no entitlement to them. He is therefore
      not entitled to procedural protections when credit for these days is removed from his
      sentence calculation.

      The reasoning of the trial court is correct in every respect and we hold that summary
judgment was properly granted to Defendant.

      The judgment of the trial court is affirmed and costs are assessed to Appellant.



                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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