         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

                     STATE OF TENNESSEE v. GREG SMITH

                    Appeal from the Criminal Court for Campbell County
                           No. 11061    E. Shayne Sexton, Judge



                                 No. E2003-01092-CCA-R3-CD
                                      February 18, 2004

The defendant, Greg Smith, appeals the trial court's denial of his motion to increase the number of
pretrial jail credits applied to his sentence. Because the defendant has no appeal as of right under
Tennessee Rule of Appellate Procedure 3(b), the appeal is dismissed.

                             Tenn. R. App. P. 3; Appeal Dismissed

GARY R. WADE, P.J., delivered the opinion of the court, in which ALAN E. GLENN , J., joined.
JOSEPH M. TIPTON , J., filed a concurring opinion.

Greg Smith, Petros, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General; and
Michael C. Ripley, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

         On March 1, 2002, the defendant entered a plea of guilt to one count of theft of property
valued at more than $500. Pursuant to a plea agreement, the defendant received a sentence of two
years to be served consecutively to the sentences he had received in two other cases. In addition, the
agreement provided that the defendant would receive pretrial jail credit for the period from February
11, 2002, to March 1, 2002. Nearly one year later, the defendant filed a motion in the trial court
contending that the appropriate amount of pretrial jail credits had not been applied to his sentence.
One week later, the defendant filed a second motion seeking the application of the pretrial jail
credits. The trial court dismissed the requests without a hearing, ruling that it was without
jurisdiction because the defendant was within the custody of the Department of Correction and that
the defendant had received the amount of pretrial jail credit contemplated by the plea agreement.
A third pleading seeking pretrial jail credits was also dismissed by the trial court, which determined
that it had already addressed the issue and had concluded that the defendant was not entitled to more
pretrial jail credits.
        In this appeal, the defendant contends that he has not received the jail credits to which he is
entitled under the terms of the plea agreement. The state submits that the defendant has received the
appropriate amount of credits and, in the alternative, that the appropriate avenue of relief on the issue
of the application of pretrial jail credits is the Uniform Administrative Procedures Act. See Tenn.
Code Ann. §§ 4-5-101 to -325.

        Initially, it is apparent that the defendant filed his motions after the judgment of the trial court
had become final and after he was in the custody of the Department of Correction. Generally, the
trial court retains jurisdiction to modify a sentence once it becomes final only so long as the
defendant is confined in the local jail or workhouse. See Tenn. Code Ann. §§ 40-35-212(c), -314(c);
cf. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) ("[A] trial judge may correct an illegal, as
opposed to an erroneous, sentence at any time, even if it has become final."). In consequence, the
trial court was without jurisdiction to grant the defendant's request even if it had endeavored to do
so. Moreover, no appeal as of right lies from the trial court's dismissal of the motions.

        Tennessee Rule of Appellate Procedure 3 provides for an appeal as of right "from any
judgment of conviction . . . from an order denying or revoking probation, and from a final judgment
in a criminal contempt, habeas corpus, extradition, or post-conviction proceeding." Tenn. R. App.
P. 3(b). The trial court's denial of a motion seeking application of pretrial jail credits is not listed
as an action from which an appeal as of right lies. Further, even if the defendant's motion could be
recast as a motion to correct the sentence, a trial court's order denying a motion to correct a sentence
is generally not appealable as a matter of right. Cox v. State, 53 S.W.2d 287, 293 (Tenn. Crim. App.
2001). In consequence, the defendant has no basis for appealing the trial court's denial of his motion
because he has no appeal as a matter of right under Tennessee Rule of Appellate Procedure 3(b).

        Regardless of the procedural deficiency, however, the record establishes that the defendant
was awarded the number of pretrial jail credits contemplated by his plea agreement. The agreement,
signed on March 1, 2002, states that the effective date of the sentence shall be February 11, 2002.
The judgment form reflects that same effective date, awarding pretrial jail credit from February 11,
2002, until March 1, 2002. Further, the defendant is not entitled to credit for time spent on
Community Corrections in an unrelated case. See Tenn. Code Ann. § 40-23-101(c) (stating that the
defendant shall receive credit for any time served "arising out of the original offense for which the
defendant was tried"); see also State v. Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983);
Trigg v. State, 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975); State v. Jaye Wesley Mitts, No.
E2002-00016-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec. 5, 2003). Nor is he entitled to
credit in this case for time served in the jail after the revocation of his Community Corrections
sentence as that time was credited to the sentence imposed in that case. See Tenn. Code Ann. § 40-
23-101(c); State v. Cavitt, No. E1999-00304-CCA-R3-CD (Tenn. Crim. App., at Knoxville, July
13, 2000) (rejecting "double-dipping" of credits for a period of confinement for two separate and
unrelated charges).

        Accordingly, the appeal is dismissed.



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      ___________________________________
      GARY R. WADE, PRESIDING JUDGE




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