         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 13, 2002

                PATRICK E. SIMPSON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 98-C-2259    Steve R. Dozier, Judge



                    No. M2001-02021-CCA-R3-CO - Filed March 22, 2001


The petitioner originally pled guilty, pursuant to a negotiated plea agreement, to two counts of
aggravated assault for agreed sentences of three years on each count, to run concurrently with each
other but consecutively to a parole violation. The petitioner over two years later filed a “Petition for
Review of Sentence” with the trial court alleging the judgment form omitted mention of the agreed
upon pretrial jail credits. The trial court dismissed the petition finding it was without jurisdiction
since the petitioner was “serving his sentence with TDOC for his parole violation.” The petitioner
challenges this ruling in this appeal, and additionally alleges he is serving his sentence in the
Department of Correction, rather than at the Davidson County Workhouse, in contravention of his
written plea agreement. We dismiss the appeal.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Patrick E. Simpson, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Jon P. Seaborg, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                              OPINION

A. Procedural History

        The petitioner was originally convicted on three counts of armed robbery and malicious
shooting for events occurring on February 5, 1977, for which he received a lengthy sentence. After
his release and while on parole, he was arrested and indicted for two counts of attempted first degree
murder for events occurring on February 28, 1998. The petitioner pled guilty on January 6, 1999,
pursuant to a negotiated plea agreement, to two counts of aggravated assault for agreed concurrent
sentences of three years for each count to run consecutively to his parole violation.

        According to the trial court’s order, petitioner earlier filed a “motion to correct judgment to
receive jail credits” on December 5, 2000. The motion was dismissed by the trial court for lack of
jurisdiction. Petitioner’s appeal to this court was dismissed as untimely; however, this court noted
that petitioner should seek relief through the Administrative Procedures Act pursuant to Tennessee
Code Annotated sections 4-5-101 et seq. State v. Patrick E. Simpson, No. M2000-03229-CCA-R3-
CD (Tenn. Crim. App. Feb. 7, 2001, at Nashville) (order dismissing appeal). This court further
denied the petition to rehear but noted petitioner, having been sentenced to the county workhouse,
might still be able to seek relief in the trial court pursuant to Tennessee Code Annotated section 40-
35-114(c). State v. Patrick Simpson, No. M2000-03229-CCA-R3-CD (Tenn. Crim. App. Feb. 28,
2001, at Nashville) (order denying petition to rehear). This statute grants the trial court full
jurisdiction over a person serving a sentence in the county jail or workhouse. However, this court
very probably was unaware that the petitioner was not actually confined in the county workhouse,
but instead was incarcerated in a Department of Correction facility. Apparently based upon this
court’s suggestion, petitioner filed the present petition on March 15, 2001.

         It appears, as we have gathered from the record, that the petitioner at the time of filing the
present petition was incarcerated in a Department of Correction facility in Wayne County. The trial
court dismissed the petition for lack of jurisdiction. The record is sparse but does contain an
executed plea agreement form; it states petitioner agreed to plead guilty to two counts of aggravated
assault for concurrent three-year sentences. Additionally, it states he is to receive “credit for time
served.” The petitioner’s judgment form indicates he was to serve his concurrent three-year
sentences in the county workhouse “consecutive to [his] parole violation;” it listed no pretrial jail
credits.

B. Place of Confinement

        Petitioner contends he is currently serving his concurrent three-year-sentences in a
Department of Correction facility rather than in the county workhouse, which is in contravention of
his plea agreement. On appeal, he contends the trial court erred in "fail[ing] to enter an appropriate
order sentencing the Appellant to the Davidson County Workhouse pursuant to a court approved Plea
Agreement." Initially, we note this issue was not presented to the trial court; however, we will
address it.

        It is undisputed that the judgment form reflects that the three-year concurrent sentences are
to be served in the county workhouse, not the Tennessee Department of Correction. In the event
petitioner is correct in alleging he has fully served his parole revocation sentence in the Department
of Correction and has now begun serving the three-year sentence, he is still not entitled to relief in
the Davidson County trial court. The trial court did not err in failing to issue another order reflecting
that the place of confinement is the county workhouse; the judgment already contained this
information. Assuming petitioner has not been released on parole and is presently confined in a

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Department of Correction facility serving the three-year sentence, it may well be that he can seek
habeas corpus relief in the county of his confinement. See Tenn. Code Ann. § 29-21-105. Petitioner
is apparently confined in a Department of Correction facility in Clifton, Wayne County, Tennessee.
We voice no opinion as to the likelihood of success of a habeas corpus petition.

C. Pretrial Jail Credits

        Petitioner contends the trial court erroneously neglected to award him pretrial jail credits as
specified in the plea agreement. The written plea of guilty provided that the petitioner would receive
“credit for time served.” The judgment form provides for no pretrial jail credits.

         Generally, a motion to correct the denial of pretrial jail credits, filed after the judgment has
become final and after the trial court has lost jurisdiction, is unavailing. Cox v. State, 53 S.W.2d
287, 292-93 (Tenn. Crim. App. 2001) (citations omitted). Further, there is no appeal “as a matter
of right” from such a motion. Id. at 293. The trial court does retain jurisdiction to modify a
sentence, however, during the time the defendant is incarcerated in the local jail or workhouse or is
awaiting transfer to the Department of Correction. See Tenn. Code Ann. §§ 40-35-212(c), -314(c).
In the instant case the judgments had become final long before the filing of the instant petition, and,
for whatever reason, the petitioner was not confined in the county jail or county workhouse. Thus,
under these general rules, the trial court would not have jurisdiction to modify the judgment.

        However, if such a motion can be viewed as a timely filed motion to reduce sentence
pursuant to Rule 35(b) of the Tennessee Rules of Criminal Procedure, or as a motion to correct
“[c]lerical mistakes” in a judgment pursuant to Rule 36 of the Tennessee Rules of Criminal
Procedure, the trial court has jurisdiction to rule upon such requests. Cox, 53 S.W.3d at 292.
Clearly, petitioner is entitled to no relief under Rule 35(b) because the present petition was filed
more than 120 days after the sentence was imposed. Nevertheless, as the state concedes, this petition
could be viewed as one seeking relief from a clerical mistake, which may be filed “at any time.”
Tenn. R. Crim. P. 36; State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996).

        Even if the petition should be considered as a Rule 36 motion, the question remains whether
this matter is the proper subject of a Rule 3 appeal as of right. See Tenn. R. App. P. 3(b). An appeal
from the denial of a Rule 36 motion is not listed among those matters appealable as a matter of right.
See Tenn. R. App. P. 3(b); Ronald Gary Deville v. State, No. 01C01-9105-CC-00155, 1991 WL
202435, at *1 (Tenn. Crim. App. Oct. 11, 1991, at Nashville). However, the common law writ of
certiorari may on rare occasions be granted to review sentencing infirmities not otherwise
appealable. Cox, 53 S.W.3d at 294. We will now determine if this is one of those rare occasions
allowing review by certiorari, even if we assume this to be a Rule 36 motion.

       The common law writ of certiorari is limited to addressing an inferior tribunal’s
“exceed[ing] its jurisdiction” or acting “illegally,” when there is “no other plain, speedy or adequate
remedy.” Tenn. Code Ann. § 27-8-101; Cox, 53 S.W.3d at 294. In this instance we are unable to
conclude the trial court exceeded its jurisdiction or acted illegally. Furthermore, petitioner has an


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adequate remedy through the Uniform Administrative Procedures Act. See Tenn. Code Ann. § 4-5-
101 et seq.

        We do not believe this is one of the “unique circumstances” where the trial court is in the best
position to calculate pretrial jail credits. See State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App.
1997). The documentation in the record indicates that the parole board on June 10, 1999, some five
months after the guilty plea to the current charges, revoked parole and ruled the petitioner would
begin serving the new three-year sentence on January 6, 2001. See Tenn. Code Ann. § 40-28-123(a).
The document also noted the parole violation warrant was served April 2, 1998. It is probable the
parole board credited and/or allocated all time from April 2, 1998, to January 6, 2001, toward the
parole revocation. If so, the time between the petitioner’s arrest on the subject charges while he was
in custody and April 2, 1998, have not been credited. Clearly, petitioner is not entitled to double
credits; however, he is entitled to credit on one sentence or the other for all the time he was in
custody.

        Nevertheless, we are unable to make these determinations from the record. It further appears
the crucial issue involving jail credits revolves around the parole board’s actions months after entry
of the guilty plea. Accordingly, we are unable to conclude the trial court is in the best position to
determine proper credits. Thus, there is no basis for certiorari relief. Petitioner should seek relief
through the Administrative Procedures Act.

          For these reasons, we conclude this matter is not properly before this court and dismiss the
appeal.




                                                               JOE G. RILEY, JUDGE




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