       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                 FILED
                                                   April 24, 1998

BOBBY TEASTER,                )                 Cecil W. Crowson
                              )                Appellate Court Clerk
      Plaintiff/Appellant,    )   Davidson Chancery
                              )   No. 95-3774-II
VS.                           )
                              )   Appeal No.
TENNESSEE DEPARTMENT          )   01A01-9608-CH-00358
OF CORRECTION, ET AL.,        )
                              )
      Defendants/Appellees.   )




                 APPEAL FROM THE CHANCERY COURT
                      FOR DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE


        THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR



For Plaintiff/Appellant:               For Defendants/Appellees:

Bobby Teaster, Pro Se                  John Knox Walkup
                                       Attorney General and Reporter

                                       Patricia C. Kussmann
                                       Assistant Attorney General




                    VACATED AND REMANDED




                                  WILLIAM C. KOCH, JR., JUDGE
                                      OPINION

       This appeal involves a disagreement between a prisoner and the Department
of Correction concerning the calculation of his sentence. The prisoner filed a petition
for a declaratory judgment in the Chancery Court for Davidson County asserting that
the Department had failed to credit him with 765 days of street time while he was on
probation. The trial court converted the Department’s Tenn. R. Civ. P. 12.02(6)
motion to dismiss to a motion for summary judgment and then dismissed the petition.
On this appeal, the prisoner asserts that he should have been notified of the
conversion of the Department’s motion and should have been given an opportunity
to respond with appropriate evidentiary materials. We agree and accordingly vacate
the summary judgment.


                                                I.


       Bobby Teaster is an inmate in the Morgan County Regional Correctional
Facility in Wartburg, Tennessee. In April 1992, he was convicted of several drug
offenses by a Sevier County jury and received three concurrent sentences amounting
to 14 years in prison. Mr. Teaster was admitted to the Department of Correction’s
“boot camp” and was released on parole in November 9, 1992 after successfully
completing the program. He remained on parole until December 14, 1994 – a total
of 765 days. He returned to prison following his convictions for D.U.I., evading
arrest, bribery of a witness, and subornation of perjury.1


       Upon Mr. Teaster’s return to custody, the Department refused to give him
credit for the 765 days he spent on probation. In August 1995, Mr. Teaster sought a
declaratory ruling from the Department, asserting that he was entitled to receive
credit for the 765 days of probation time. The Department declined to render a
declaratory ruling on November 10, 1995, and on December 4, 1995, Mr. Teaster
filed a pro se petition for declaratory judgment in the Chancery Court for Davidson



       1
        See State v. Teaster, No. 03C01-9611-CC-00405, 1997 WL 593832, at *4 (Tenn. Crim. App.
Sept. 26, 1997) (Tenn. R. App. P. 11 application filed Nov. 26, 1997); State v. Teaster, No. 03C01-
9602-CC-00070, 1997 WL 65725, at *1-2 (Tenn. Crim. App. Feb. 18, 1997) (No Tenn. R. App. P.
11 application filed).

                                               -2-
County. His petition alleged that the Department had incorrectly calculated his
sentence and requested the court to order the Department to grant him credit for his
765 days of probation time. In his own words, Mr. Teaster alleged that the trial court
“[a]t no time did . . . ever take this street time from me.” He alleged that by adding
the probation days back into the time he must remain incarcerated, the Department
incorrectly extended his sentence expiration date and impermissibly altered the
judgment of the trial court that revoked his probation.


      The Department moved to dismiss Mr. Teaster’s petition on two grounds: that
Mr. Teaster had not met the jurisdictional prerequisite of seeking a declaratory order
from the Department prior to filing suit and that the complaint failed to state a cause
of action for which relief could be granted. The Department also submitted an
affidavit of its manager of Sentence Information Services stating that Mr. Teaster’s
sentence following his return to custody has been calculated correctly. The affidavit
explained that Mr. Teaster’s “sentence was recalculated to reflect time not served
while being out on the street. Thus, when the 765 days was [sic] added back to the
sentence as time unserve[d,] the expiration date of the sentence was extended.”


      Mr. Teaster responded to the Department’s motion on February 22, 1996. He
insisted that he had satisfied the jurisdictional prerequisite of obtaining an order from
the Department, and he attached to his response a copy of the Department’s
November 10, 1995 letter denying him declaratory relief. He also stated that “in the
instant case the trial judge did not see fit to begin Petitioner’s sentence over” and
alleged that the Department had “taken it upon themselves to begin Petitioner’s
sentence from the time [probation] was revoked and failed to look at any judgment
papers to see what the trial court ordered.”


      On April 17, 1996, the trial court filed a memorandum and order stating that
it had considered the affidavit of the Department’s Manager of Sentence Information
Services, and therefore, that it was treating the Department’s motion to dismiss as a
motion for summary judgment. The trial court then concluded that the Department
was entitled to judgment as a matter of law on the sole ground that prisoners are not
entitled to a credit against the length of their sentences for time spent on probation.
With that ruling the trial court dismissed Mr. Teaster’s petition.

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                                          II.


      Mr. Teaster’s procedural challenge to the trial court’s treatment of his petition
is dispositive of this appeal. He asserts that the trial court should have notified him
that it intended to convert the Department’s motion to dismiss to a motion for
summary judgment thereby giving him an opportunity to respond to the motions with
appropriate evidentiary materials to rebut the substance of the Department’s affidavit.
Under the facts of this case, we agree.


      Even since Slagle v. Reynolds, 845 S.W.2d 167 (Tenn. 1992) was decided, this
court has received a steady stream of appeals from prisoners seeking judicial review
of the calculation of their sentences . That stream has become a torrent, and these
appeals now make up the lion’s share of the cases submitted to us on briefs without
oral argument. While “[p]risoners are not a favored group in society; [and] the
propensity of some of them to sue at the drop of a hat is well known,” Crawford v.
Indiana Dept’ of Correction, 115 F.3d 481, 486 (7th Cir. 1997), prisoners bringing
actions challenging the calculation of their sentences are invoking their
fundamentally imprescriptible right to liberty. It is our duty to see to it that these
claims receive fair consideration. That sense of duty drives our decision in this case.


      Tenn. R. Civ. P. 7.02 requires that motions be made in writing and state their
grounds with particularity. The Department’s motion to dismiss rested specifically
on two grounds: that Mr. Teaster had not met the jurisdictional requirement of first
seeking a declaratory order from the Department concerning the calculation of his
sentence, see Tenn. Code Ann. § 4-5-225(b) (Supp. 1997), and alternatively that the
petition failed to state any grounds for relief. While we understand why the
Department interposed the first ground, its alternative ground was meritless in the
context of Mr. Teaster’s petition.


      A motion to dismiss for failure to state a claim admits the truth of all the
relevant and material averments of a complaint, but asserts that such facts are not
legally actionable. See Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938
(Tenn. 1994); Fletcher v. Bd. of Prof. Responsibility, 915 S.W.2d 448, 450 (Tenn. Ct.
App. 1995). Mr. Teaster’s petition with its incorporated exhibits alleges in readily

                                          -4-
understandable language that the Department illegally extended the length of his
sentence. Beyond question, a prisoner may seek judicial relief when the Department
of Correction miscalculates his or her sentence. See, e.g., Slagle v. Reynolds, 845
S.W.2d at 170-71; Allen v. Bradley, 905 S.W.2d 192, 194 (Tenn. Ct. App. 1995). Mr.
Teaster’s petition facially states a claim for which courts can grant relief if Mr.
Teaster carries his burden of proof.


      Obviously the real thrust of the Department’s motion to dismiss aimed at Mr.
Teaster’s alleged failure to comply with Tenn. Code Ann. § 4-5-225(b)’s exhaustion
requirement. Mr. Teaster’s response, exhibiting a copy of the Department’s pre-
lawsuit letter denying him a declaratory order, overcame the Department’s only
possible Rule 12 grounds for dismissal.


      Once it became clear that the Department was not entitled to have Mr.
Teaster’s petition dismissed under Tenn. R. Civ. P. 12, the trial court could have
disregarded the affidavit of the manager of Sentence Information Services and could
have denied the Department’s motion to dismiss on the motion’s stated grounds. See
Pacific E. Corp. v. Gulf Life Holding Co., 902 S.W.2d 946, 952 (Tenn. Ct. App.
1995) (stating that a court may prevent a Tenn. R. Civ. P. 12.02[6] motion from
becoming one for summary judgment by declining to consider extraneous matters).
Instead, the trial court exercised its discretion to consider the Department’s affidavit,
thereby converting the Department’s motion to a motion for summary judgment. See
Tenn. R. Civ. P. 12.02; Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn. 1973); Pacific
E. Corp. v. Gulf Life Holding Co., 902 S.W.2d at 952. Once that conversion
occurred, the court’s consideration of the motion had to comply with all the
procedural requirements of Tenn. R. Civ. P. 56, and, in the words of Tenn. R. Civ. P.
12.02, “all parties [had to] be given reasonable opportunity to present all material
made pertinent to such a motion by Rule 56.”


      Because of the significant differences between the consideration of motions to
dismiss and motions for summary judgment, it is important for trial courts to give the
parties notice of the changed status of the motion and a reasonable opportunity to
present all pertinent Tenn. R. Civ. P. 56 materials. See 2A James W. Moore, Moore’s
Federal Practice ¶ 12.09[3] (2d ed. 1995); 5A Wright & Miller, Federal Practice and

                                          -5-
Procedure, § 1366, at 501 (2d ed. 1990). Formal notice of the trial court’s decision
either to consider or to exclude extraneous factual matters eliminates the possibility
of confusion and misunderstanding concerning the posture of the proceedings.


      As the federal courts have pointed out from experience, adequate notice of
conversion of a motion to dismiss to one for summary judgment is particularly
important in pro se litigant cases. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992); Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir. 1984). As to prisoners
litigating claims pro se, “their vulnerability to misunderstanding of what is required
of them makes the provision of notice particularly important.” Donald v. Cook
County Sheriff’s Dep’t, 95 F.3d 548, 559 (7th Cir. 1996).


      A trial court’s failure to give formal notice of conversion ordinarily will not
constitute reversible error unless the non-moving party was prejudiced by lack of
notice. See Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1351
(6th Cir. 1989); 2A Moore, supra, at ¶ 12.09[3]; 5A Wright & Miller, supra, § 1366,
at 506. However, where courts have reason, based on allegations in the record, to
believe that a non-movant with proper notice could have established a genuine,
material factual dispute, reversible error exists. See Sellers v. Henman, 41 F.3d 1100,
1101-02 (7th Cir. 1994).


      In this case, the trial court’s consideration of the Department’s affidavit and
accompanying legal argument went to the factual and legal merits of Mr. Teaster’s
petition. The Department correctly contended before both the trial court and this
court that persons convicted of crimes are not entitled to credit against their sentences
for time spent on probation. The time a convicted person spends on probation,
commonly called “street time,” is not time spent serving a prison sentence, and once
a court revokes any probation, that “street time” does not operate to reduce the
originally imposed sentence. See State v. Hunter, No. 01C01-9608-CC-00334, 1997
WL 672650, at *4 (Tenn. Crim. App. Oct. 30, 1997) (Tenn. R. App. P. 11 application
filed Dec. 30, 1997); State v. Austin, No. 01C01-9512-CC-00431, 1996 WL 594092,
at *1 (Tenn. Crim. App. Oct. 17, 1996) (No Tenn. R. App. P. 11 application filed);
Young v. State, 539 S.W.2d 850, 854-55 (Tenn. Crim. App. 1976).



                                          -6-
        Mr. Teaster contends, however, that when the trial court revoked his probation,
the trial court did credit him with the 765 days of street time. If, indeed, the trial
court that revoked his probation credited Mr. Teaster with those days against his
sentence, then the Department could not unilaterally “correct” that mistake by adding
the days back to his sentence once he returned to the Department’s custody. The
Department may not alter the judgment of a court, even if that judgment is incorrect
or illegal. See State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978); State v. Jones,
No. 02C01-9406-CC-00134, 1995 WL 126625, at *1 (Tenn. Crim. App. Mar. 22,
1995) (No Tenn. R. App. P. 11 application filed).2


        We find it reasonable to believe that had Mr. Teaster known that the chancery
court was going to consider the Department’s affidavit and determine his case on the
merits, he might have supported his allegations by submitting a copy of the judgment
revoking his probation. We find that the conversion of the Department’s motion
without notice impermissibly prejudiced Mr. Teaster in the presentation of his case
and was thus reversible error. Therefore, we vacate the summary judgment and
remand this case for further proceedings.


        On remand, the Department may, of course, move for summary judgment.
However, if it does so, it must go beyond making a “conclusory assertion that [Mr.
Teaster] has no evidence” to support his characterization of the judgment that
revoked his probation. See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). If the
Department on remand makes a properly-supported summary judgment motion, Mr.
Teaster will not be able to rely merely on the allegations in his pleadings. He will
need to provide the court with evidence showing the existence of a genuine issue for
trial or making a judgment as a matter of law for the Department improper. Any
materials Mr. Teaster may submit must set forth facts admissible at trial, although his


       2
         What we say in this opinion does not mean that if the court that revoked the prisoner’s
probation wrongly credited Mr. Teaster with that probation time, Mr. Teaster ultimately gets to
capitalize on that mistake. It is well-settled that a judgment imposed by a trial court in contravention
of statutory law regarding sentencing is illegal and may be set aside at any time, even if it has
become final. State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987); State v. Burkhart, 566 S.W.2d
at 873; 11 David L. Raybin, Tennessee Practice: Criminal Practice and Procedure § 33.15 (1985).
Tenn. Code Ann. §§ 40-35-310, - 311(d) (1997) provide that a trial court may revoke probation and
suspension of sentence and in such cases the original judgment shall be in full force and effect from
the date of revocation. The correction of an errant sentencing judgment, if any, must be addressed
properly and in the proper forum.

                                                  -7-
submitted materials need not be in the format required to make those materials
admissible at trial. See Byrd v. Hall, 847 S.W.2d at 215-16. Mr. Teaster’s status as
a pro se litigant will not excuse him from presenting the evidence required to carry
a non-movant’s summary judgment burden. See Cole v. State, 798 S.W.2d 261, 264
(Tenn. Crim. App. 1990).


                                          III.


      We vacate the summary judgment dismissing Mr. Teaster’s petition and
remand the case to the trial court for further proceedings consistent with this opinion.
We also tax the costs of this appeal to the Department of Correction.




                                                 ______________________________
                                                 WILLIAM C. KOCH, JR., JUDGE


CONCUR:


__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



__________________________________
BEN H. CANTRELL, JUDGE




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