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

                       STATE OF TENNESSEE v. GREG SMITH

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



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


JOSEPH M. TIPTON , J., concurring.

        I agree with the result reached and most of the reasoning used in the majority opinion.
However, I question the conclusion that the trial court was without jurisdiction to entertain a request
to grant earned pretrial jail credits.

        As the majority opinion notes, the state asserts that the petitioner’s proper avenue of relief
was through administrative procedures once he was in the custody of the Department of Correction
(DOC). What is not noted, though, is that such procedures would be useless when the claim relates
to the failure of the trial court to award pretrial jail credits. Pursuant to T.C.A. § 40-23-101(c), the
trial court is required at the time of sentencing to allow a defendant pretrial jail credit. The DOC is
powerless to change what the trial court awarded or failed to award.

         The issue of interest, though, is whether the trial court has the power to award duly earned
pretrial jail credit after the trial court has otherwise lost jurisdiction of the case. Also as the majority
opinion notes, the trial court may correct an illegal sentence at any time. In this respect, a panel of
the court of appeals has indicated its belief that the failure to award pretrial jail credits as mandated
by T.C.A. § 40-23-101(c) renders the sentence illegal and subject to correction at any time. See
Christopher Johnson v. Tennessee Department of Correction, No. 01-A-01-9602-CH-00064,
Davidson County (Tenn. Ct. App. Aug. 7, 1996), app. denied (Tenn. Dec. 23, 1996). Also, a panel
of this court has affirmed the trial court’s award of pretrial jail credits after the defendant was in
DOC custody. See Matthew P. Finlaw v. Anderson Co. Jail, No. 03C01-9212-CR-00448, Anderson
County (Tenn. Crim. App. Aug. 13, 1993); State v. Christopher Oliver, No. 03C01-9212-CR-00447,
Anderson County (Tenn. Crim. App. May 11, 1993). In State v. Henry, 946 S.W.2d 833, 834 (Tenn.
Crim. App. 1997), this court stated that Finlaw and Oliver were based upon “unique circumstances
which authorize the trial court to entertain requests for declaration of proper sentence credits.” My
concern is that the trial court either has jurisdiction to correct pretrial jail credits or it does not,
“unique circumstances” aside. I believe that the trial court may correct judgments relative to earned,
but not awarded, credits.
        When certain action is mandated or prohibited by statute, the Tennessee Supreme Court has
viewed sentences to be correctable, even after the judgments have become “final.” In State v.
Burkhart, 566 S.W.2d 871 (Tenn. 1978), the petitioner was in prison for burglary when he escaped.
Five months after his recapture, he pled guilty to escape and received a one-year sentence. The
judgment gave the petitioner jail credit for the five months since his recapture, thereby effectively
running his escape sentence concurrently with the burglary sentence. However, pursuant to T.C.A.
§ 39-3802 (1975), punishment for escape from the DOC “shall . . . commence from and after the
expiration of the original term.” The supreme court concluded that the trial court’s judgment “was
in direct contravention of the express provisions of T.C.A. § 39-3802, and consequently was a
nullity.” 566 S.W.2d at 873. It stated that the trial judge “had both the power, and the duty, to
correct the judgment . . . as soon as its illegality was brought to his attention.” Id.

         In Henderson v. State ex rel. Lance, 220 Tenn. 520, 419 S.W.2d 176 (1967), the Tennessee
Supreme Court affirmed the grant of habeas corpus relief to a petitioner who pleaded guilty to armed
robbery under an agreement by which his sentence would run concurrently with the sentence for
which the petitioner had been on parole when he committed the robbery. Pursuant to T.C.A. § 40-
3620, the commission of a felony by a parolee required the original sentence to be served before the
parolee began serving the new sentence. The court noted that the state conceded that under the
statute, the trial judge was powerless to order concurrent sentences. 220 Tenn. at 522, 419 S.W.2d
at 177. More recently, in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas corpus petitioner
pled guilty to several rapes and a burglary, receiving concurrent sentences. He sought to void the
convictions, and his habeas corpus petition alleged that he was on bail from one of the rape charges
when he committed the second rape and burglary. He relied upon T.C.A. § 40-20-111(d) and Rule
32(c)(3)(C) which provide that a sentence for a felony committed while released on bail shall be
served consecutively regardless of what the judgment provides. The supreme court concluded that
such concurrent sentencing would render the sentences illegal and create a void judgment for which
habeas corpus relief would be available. 59 S.W.3d at 91.

         As previously noted, T.C.A. § 40-23-101(c) provides that the trial court “shall, at the time
the sentence is imposed . . . render the judgment of the court so as to allow the defendant credit on
the sentence for any period of time for which the defendant was committed and held . . . pending
arraignment and trial. The defendant shall also receive credit on the sentence for the time served .
. . subsequent to any conviction . . . .” As our supreme court has said, the awarding of such jail credit
is mandatory. Stubbs v. State, 216 Tenn. 567, 576, 393 S.W.2d 150, 154 (1965). I believe these
circumstances leave the power to correct the awarding of pretrial jail credits with the trial court.

       However, I concur in the result reached in the majority opinion. The case is not properly
before us.


                                                        ____________________________________
                                                        JOSEPH M. TIPTON, JUDGE



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