                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                On Briefs September 21, 2000

          STATE OF TENNESSEE v. DEMETRIUS LEVAR MCNEIL

                 A Direct Appeal from the Criminal Court for Shelby County
                     No. JV-00063    The Honorable Chris Craft, Judge



                   No. W2000-00276-CCA-R3-CD - Filed November 8, 2000


        Juvenile convicted in criminal court in de novo trial of appeal from juvenile court appeals
the criminal court order denying his motion pursuant to Tenn.R.Crim.P. 36 to correct a clerical error.
Juvenile asserts that although the criminal court ruled that there was no clerical error, the criminal
court, in failing to remand the case to a juvenile court, committed plain error for which relief should
be granted. Upon finding that the criminal court had no jurisdiction to retain the case, the case is
remanded to the criminal court to modify the sentencing order by remanding to the juvenile court.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Mark A. Mesler, Memphis, For Appellant, Demetrius Levar McNeil

Paul G. Summers, Attorney General & Reporter
Kim R. Helper, Assistant Attorney General, For Appellee, State of Tennessee

                                             OPINION


       On September 28, 1998, a petition was filed in juvenile court against Demetrius Levar
McNeil, defendant/ appellant, to find him delinquent. The petition alleged that on May 25, 1998,
Defendant committed aggravated sexual battery against four named minors. Following a hearing
in the Shelby County Juvenile Court, the referee sustained the petition and found Defendant
delinquent. The referee recommended that Defendant be placed under the care and supervision of
the Youth Services Bureau subject to further orders of the juvenile court. On December 10, 1998,
the juvenile court confirmed the findings and recommendations of the referee. On December 22,
1998, Cherri Hatton, mother of Defendant, filed a notice of appeal to the Criminal Court of Shelby
County. Defendant filed a request for a rehearing before the judge in juvenile court; however, an
order dismissing the rehearing was entered on December 23, 1998, stating that Defendant requested
that the court dismiss the rehearing as he wished to appeal the original ruling.

        In February of 1999, a jury trial was held in Shelby County Criminal Court, and the
Defendant was found guilty of three of the four charged counts of aggravated sexual battery. On
March 4, 1999, a sentencing hearing was held and an order entered pursuant to T.C.A. § 37-1-137(c)
committing Defendant to the Department of Children’s Services until February 13, 2002,
Defendant’s nineteenth birthday. On May 18, 1999, Defendant filed a petition for suspension of the
remainder of his sentence which was denied. On August 4, 1999, Defendant filed a motion to correct
an error in judgment pursuant to Rule 36 of the Tennessee Rules of Criminal Procedure. Defendant
averred that pursuant to § 37-1-159 (c) (Supp. 1999), the order entered March 4, 1999, should be
corrected to show that the case was remanded to juvenile court for enforcement of the order rendered
by the criminal court. On November 12, 1999, Defendant filed a petition to modify the order of
March 4, 1999, to provide for home placement and supervision by the Department of Human
Services. The record reflects that a hearing was held on that motion, and the motion was withdrawn
after testimony from a representative of the department testified that he was not in favor of home
placement. A hearing was held on December 10, 1999 on Defendant’s motion to correct, and an
order denying the motion was entered on the same date, stating in pertinent part:

               On December 10, 1999, a hearing was had on the instant motion,
               which was denied. Appellant alleges that this Court’s commitment
               order, styled Findings and Recommendations, entered May 26, 1999,
               contains a clerical error which should be corrected. Tenn. R. Crim.
               P. 36 states as follows:

                       Clerical mistakes in judgments, orders, or other parts
                       of the record and errors in the record arising from
                       oversight or omission may be corrected by the court at
                       any time and after such notice, if any, as the court
                       orders.

               This Court’s order committing appellant to the Department of
               Children’s Services was not a "clerical error" which should be
               corrected by this court. The order itself was not appealed by
               appellant, who seeks now to attack the ruling collaterally by asserting
               that it contains a clerical error which can be corrected at any time.

                       Although Tenn. Code Ann. § 37-1-159 ( c) states in part that
               "the criminal court... shall remand the case to the juvenile court for
               enforcement of the judgment rendered by the criminal court...," Tenn.
               Code Ann. § 37-1-137(a)(1)(B) states in pertinent part that




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        If a juvenile offender is tried and adjudicated
        delinquent in juvenile court for the offense of
        ...aggravated sexual battery... the commitment may
        be for a determinate period of time but in no event
        shall the length of commitment be greater than the
        sentence for the adult conviction of the same crime,
        nor shall such commitment extend past the offender’s
        nineteenth birthday. (Emphasis added)

Section (g) (3) of that statute further states that:

        In the event the juvenile offender is a person
        described in subdivision (a)(1)(B) and is given a
        determinate commitment, and the commissioner or the
        commissioner’s designee is of the opinion that the
        juvenile offender is a fit subject for discharge, the
        commissioner or the commissioner’s designee shall
        request a hearing before the judge of the juvenile
        court in which the original commitment occurred.
        The request shall state the reasons for recommending
        the discharge and shall make specific
        recommendations as to where the child will be placed.
        A copy of the request for a hearing shall be supplied
        to the district attorney general. If, on review of the
        record, the court is of the opinion that the request is
        well taken and the district attorney has no objection,
        the judge may order the placement without a hearing.
        Otherwise the court shall schedule a hearing within
        fifteen (15) days of the receipt of the request for
        hearing. At the hearing, the department, the juvenile
        offender and the state shall be given an opportunity to
        be heard in support of or in opposition to the proposed
        discharge and all of the parties may subpoena
        witnesses to testify on any issue raised by the
        proposed discharge. The court may make such orders
        pertaining to the continued commitment or discharge
        as the court determines are justified under the proof
        produced at the hearing. (Emphasis added).

This Court feels that since this Court heard the facts as brought out
during the jury trial, this trial was a de novo appeal from juvenile
court, and this Court was the committing court, that although juvenile
court may enforce the judgment by transporting appellant to the


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                Department of Children’s Services, this Court is the proper forum for
                deciding whether or not any change in the appellant’s placement
                should be warranted. To hold otherwise would be to allow a judge
                unfamiliar with the facts of appellant’s offense to decide appellant’s
                plan of rehabilitation, which would not be in the best interests of the
                child. This Court entered its commitment order with that purpose in
                mind. If the order had been appealed, and an appellate court had
                decided that the above statutes mandated a remand to juvenile court,
                to have a different judge not familiar with the facts determine as to
                whether or not a determinate commitment was warranted, this Court
                would have gladly relinquished jurisdiction. However, that order was
                not appealed, and this Court’s order should not now be subject to
                collateral attack under the guise of correcting a "clerical error." This
                Court felt it was in the best interest of the child, as well as in
                accordance with and in the spirit of the above statutes, to enter the
                order it did, and although subject to appellate review if it had been
                appealed, the order does not contain any clerical errors, and is not
                subject to Rule 36.

        It is from this order that Defendant appeals raising one issue as stated in his brief:

                Whether the trial court erred by denying the appellant’s motion to
                correct error in judgment pursuant to Rule 36 of the Tennessee Rules
                of Criminal Procedure, where T.C.A. § 37-1-159 ( c) mandates that,
                following a finding of delinquency, the criminal court remand a case
                to juvenile court for enforcement of the judgment rendered by the
                jury.

         In his brief Defendant concedes that Rule 36 is intended only to grant trial courts limited
power over cases that have been disposed of to correct clerical mistakes in judgment and other errors
in the record arising from an over sight or omission. See State ve. Pendergrass, 937 S.W.2d 834,
837 (Tenn. 1996). However, Defendant submits that his Rule 36 motion was filed in a good faith
effort to correct the trial court’s error. Defendant argues that his present counsel was hired in August
of 1999, and at the time of the motion was unaware of whether the failure of the trial court to remand
the case to juvenile court was intentional. Defendant states in his brief that in retrospect, it is clear
from the order denying his motion, that the trial court intentionally did not remand the case to
juvenile court. Defendant requests that if this Court finds that the Rule 36 motion was an improper
means by which to bring this issue to this Court’s attention, that this Court use its discretion to
review the instant case pursuant to Tenn.R.App.P. 13 (b) and Tenn.R.Crim.P. 52.

       The state makes no response to appellant’s assertion that the criminal court did not comply
with the mandate of T.C.A. § 37-1-159(c)(Supp. 1999), but merely contends that Rule 36 is



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inapplicable, because defendant is not seeking to correct a clerical error but instead seeks to make
a substantive change in the judgment order.

        “A judgment in a criminal case becomes final 30 days after its entry or overruling of a motion
for new trial, and thereafter, a trial court has no jurisdiction to modify it.” State v. Miller, No.
02C01-9708-CC-00300, 1998 WL 902592 *2 , (Tenn. Crim. App. Dec. 29, 1998); (citing State v.
Charles Alvin Haney, No. 839 (Tenn. Crim. App., March 29, 1989) (citations omitted)); see also
State v. Thomas, No. 03C01-9504-CR-00109, 1995 WL 676396 (Tenn. Crim. App., , Nov. 15,
1995). To insure the stability of criminal case judgments, they can not be changed unless such
change is made to correct illegal sentencing or to correct clerical errors pursuant to Rule 36 of the
Tennessee Rules of Criminal Procedure. State v. Thomas, at *1.

               In making changes for clerical error, the record in the case must show
               that the judgment entered omitted a portion of the judgment of the
               court or that the judgment was erroneously entered. The most reliable
               indicator that clerical error was made is the transcript of the hearing
               or other papers filed in connection with the proceedings which show
               the judgment was not correctly entered. In the absence of these
               supporting facts, a judgment may not be amended under the clerical
               error rule after it has become final.

Id.
        The trial judge correctly ruled that there is no clerical error, because, as he made very clear
in his order overruling appellant’s Rule 36 motion, he intended to retain jurisdiction “for deciding
whether or not any change in the appellant’s placement should be warranted.” However, our inquiry
should not end here. We must bear in mind that we are dealing with a juvenile, and quite
appropriately the legislature has declared its intention in dealing with juveniles that stray “outside
the law.” T.C.A. § 37-1-101 (1996) provides in part:

               37-1-101. Purpose - Jurisdiction. - (a) This part shall be construed
               to effectuate the following public purposes:

               (1) Provide for the care, protection, and wholesome moral, mental
               and physical development of children coming within its provisions;

               (2) Consistent with the protection of the public interest, remove from
               children committing delinquent acts that taint of criminality and the
               consequences of criminal behavior and substitute therefor a program
               of treatment, training and rehabilitation;

               (3) Achieve the foregoing purposes in a family environment
               whenever possible, separating the child from such child’s parents



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               only when necessary for such child’s welfare or in the interest of
               public safety;

               (4) Provide a simple judicial procedure through which this part is
               executed and enforced and in which the parties are assured a fair
               hearing and their constitutional and other legal rights recognized and
               enforced;

                               *               *               *

       Appeals from delinquency proceedings in juvenile court are to the criminal court for a trial
de novo. T.C.A. § 37-1-159 (Supp. 1999). The statute further provides:

               37-1-159. Appeals. -

                               *               *               *
               (b) An appeal does not suspend the order of the juvenile court, nor
               does it release the child from the custody of that court or of that
               person, institution or agency to whose care the child has been
               committed. Pending the hearing, the criminal court or circuit court
               may make the same temporary disposition of the child as is vested in
               juvenile courts; provided, that until the criminal court or circuit court
               has entered an order for temporary disposition, the order of the
               juvenile court shall remain in effect.

               (c) When an appeal has been perfected, the juvenile court shall cause
               the entire record in the case, including the juvenile court’s findings
               and written reports from probation officers, professional court
               employees or professional consultants, to be taken forthwith to the
               criminal court or circuit court whose duty it is, either in term or in
               vacation, to set the case for an early hearing. When an appeal is taken
               from a juvenile court’s decision that involves the removal of a child
               or children from the custody of their natural and/or legal parents or
               guardian or from the department of children’s services, or when the
               decision appealed involves the deprivation of a child’s liberty as a
               result of a finding that such child engaged in criminal activity, such
               hearing shall be held within forty-five (45) days of receipt of the
               findings and reports. In its order, the criminal court or circuit
               court shall remand the case to the juvenile court for enforcement
               of the judgment rendered by the criminal court or circuit court.
               Appeals from an order of the criminal court or circuit court pursuant
               to this subsection may be carried to the court of appeals as provided
               by law. (Emphasis added).


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                               *               *               *

        It is apparent from the language of the statute that the legislature intended that the juvenile
be afforded a right to a jury trial in the criminal court, but that the custodial jurisdiction of the
juvenile court should continue. Such an intent is apparent to foster the purposes of the jurisdiction
provided for in T.C.A. § 37-1-101 (1996). It is obvious from a fair reading of T.C.A. § 37-1-159
(Supp. 1999) that the legislature intended to provide the juvenile with all due process rights by
having the trial in criminal court. It quite clearly provides that the appeal did not release the child
from the custody of the juvenile court and that the order of the criminal court “shall remand the case
to the juvenile court for enforcement of the judgment.” Under these circumstances, it appears that
the failure of the trial court to make such a provision constitutes “plain error.”

        As we construe the trial court’s order from which this appeal is taken, the trial court has
specifically retained jurisdiction of the enforcement of its judgment. We believe a fair reading of
§ 37-1-159 (b) and (c) mandates that the trial court, under this statute, has no jurisdiction to act
otherwise than to remand to the juvenile court enforcement of its order. The trial court’s retention
of jurisdiction by failure to remand is void.

       Accordingly, the case is remanded to the trial court for an amendment of its March 4, 1999
judgment to remand the case to the juvenile court for enforcement of the judgment, as required by
T.C.A. § 37-1-159 (c)(Supp. 1999). Costs of the appeal are assessed to the State of Tennessee.


                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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