            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1999         FILED
                                                     June 29, 1999

                                                Cecil W. Crowson
STATE OF TENNESSEE,         )
                                              Appellate Court Clerk
                            )    No. 01C01-9807-CC-00285
      Appellee              )
                            )    RUTHERFORD COUNTY
vs.                         )
                            )    Hon. J. Steve Daniel, Judge
TERRY C. MEADORS,           )
                            )    (Status of Confinement)
      Appellant             )



For the Appellant:               For the Appellee:

Jim Wiseman                      Paul G. Summers
Sally Schneider                  Attorney General and Reporter
Attorneys for Appellant
131 North Church Street          Marvin E. Clements, Jr.
Murfreesboro, TN 37130           Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 William C. Whitesell, Jr.
                                 District Attorney General
                                 3rd Floor, Rutherford Co. Judicial Bldg.
                                 Murfreesboro, TN 37130




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                            OPINION



        The appellant, Terry C. Meadors, appeals the order entered by the

Rutherford County Circuit Court returning him to confinement after his inadvertent

release by the Sheriff’s Department. While serving sentences in the Rutherford

County Workhouse, the appellant escaped. After his return to confinement, he pled

guilty to escape and received an 18 month sentence as a range I offender. This

sentence, entered December 11, 1996, was ordered to be served consecutively to a

prior sentence the appellant was serving at the time of his escape. On June 23,

1997, the appellant was granted probation for those sentences he was serving prior

to his escape. Notwithstanding the TDOC detainer for escape, the appellant, on

June 23, 1997, was inadvertently released from his confinement in the Rutherford

County Workhouse.



        During a routine file check, Linda Boyle, a supervisor at TDOC, discovered

that the appellant had never served his 18 month sentence. A hearing was held in

the Rutherford County Circuit Court on May 11, 1998, to determine whether the

appellant should be returned to confinement.1 At the conclusion of the hearing, the

trial court held that the appellant’s consecutive sentence for escape began to run on

June 23, 1997, when he was erroneously released from the custody of the

workhouse. As such, the court concluded that the appellant’s entire 18 month

sentence remained unserved. Indeed, “[t]he 18 month sentence in this case would

expire on December 23, 1998.” See State v. Walker, 905 S.W.2d 554, 556 (Tenn.

1995) (“where persons under a criminal sentence immediately present themselves

to the appropriate authority for incarceration and are turned away, the sentence in

each case begins to run when the judgment of conviction becomes final or the

defendant is actually incarcerated, whichever is earlier”). Accordingly, the court


        1
         On the date of the hearing, the appellant had been released from the workhouse for 334
days and, apparently, had successfully completed his 307 days probation on those sentences he
had be en serv ing prior to his escap e.

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ordered the appellant to begin service of his 18 month sentence for escape and

gave the appellant until June 11, 1998, to report to the workhouse.



       Although the appellant concedes that his 18 month sentence for escape

began to run on June 23, 1997, he contends that release was due to no fault of his

own, and, therefore, he should be given jail credit for the approximate 10.5 months

he remained at liberty. Relying upon the doctrine of “credit for time at liberty,” he

asserts that a range I offender serving an 18 month sentence would receive

mandatory probation after completion of 30 percent service, or 5.4 months.

Accordingly, he argues that he is entitled to immediate release on probation.



                                         Analysis



       American courts have articulated three principal theories under which an

inmate who is erroneously released from confinement may be entitled to relief. Two

of these theories, waiver of jurisdiction and estoppel, stem from one’s right to due

process; the third theory, the doctrine of “credit for time at liberty,” was judicially

created out of concerns for basic “fairness.”



       Under the waiver of jurisdiction theory, the government waives the right to

reincarcerate when its’ actions are so affirmatively improper or grossly negligent that

it would be unequivocally inconsistent with fundamental principles of liberty and

justice to require a legal sentence to be served in its aftermath. See State v.

Chapman, 977 S.W.2d 122, 126 (Tenn. Crim. App. 1997), perm. to appeal denied,

(Tenn. 1998); Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir. 1984)( citation

omitted). Similarly, under the estoppel theory, the government is estopped from

reincarcerating an inmate when:

       (1) the party to be estopped must know the facts; (2) he must intend
       that his conduct shall be acted upon or must act so that the party

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       asserting the estoppel has a right to believe it is so intended; (3) the
       party asserting the estoppel must be ignorant of the facts; and (4) that
       party must rely on the former’s conduct to his injury.


Christiansen, 732 F.2d at 1399 (citations omitted). An inmate must meet all four

criteria to invoke the remedy of estoppel. It is apparent from a reading of the record

before us that neither the waiver of jurisdiction theory, which is predicated upon

principles of gross negligence, nor the estoppel theory, which requires affirmative

misconduct, is applicable to this case. See, e.g., Chapman, 977 S.W.2d at 126.



       Although the due process claims of waiver of jurisdiction and estoppel are

inherent in any review of a prisoner who is discharged or released from confinement

by mistake, the appellant, in the case sub judice, argues for application of the

doctrine of “credit at time at liberty.” See Walker, 905 S.W.2d at 556. This

doctrine, based upon notions of fairness, provides that, “a convicted person is

entitled to credit against his sentence for time when he was erroneously at liberty

provided there is a showing of simple or mere negligence on behalf of the

government and provided the delay in execution of sentence was through no fault of

his own,” in other words, his sentence continues to run while he is at liberty. See

Chapman, 977 S.W.2d at 125 (quoting            See United States v. Martinez, 837 F.2d

861, 864 (9th Cir. 1988); Walker, 905 S.W.2d at 556 (citing Christiansen, 732 F.2d

at 1397; Smith v. Swope, 91 F.2d 260 (9th Cir. 1937)).



       Notwithstanding adoption of this legal doctrine by several of our sister states

and by the federal courts, the state of Tennessee has rejected application of this

doctrine. Chapman, 977 S.W.2d at 127. In Chapman, a panel of this court

determined that this doctrine is a departure from the common law which provides

that “a convicted person erroneously at liberty must, when the error is discovered,

serve the full sentence imposed.” Chapman, 977 S.W.2d at 126. Accordingly, the

rationale of State ex. rel. Johnston v. McClellan, 87 Tenn. 52, 9 S.W. 233 (1888),

remains viable, that is, “[a] defendant is not entitled to credit for the time at liberty

                                           4
because imprisonment is ‘confinement in fact, not in legal or other fiction.’”

Chapman, 977 S.W.2d at 125 (citing State ex. rel. Johnston v. McClellan, 87 Tenn.

at 55, 9 S.W. at 234). “A defendant must be in prison for the term of the sentence,

regardless of any lapse of time out of prison,” Chapman, 977 S.W.2d at 125 (citing

Martinez, 837 F.2d at 864), because a judgment of sentence can only be satisfied

with a term of imprisonment. See Commonwealth v. Blair, 699 A.2d 738, 740

(Pa.Super. 1997) (citations omitted).



       Despite the appellant’s reliance on judicial precedent from sister states and

his argument asking this court to distinguish his case from Chapman, we find no

reason to depart from the sound logic and reasoning applied by this court in refusing

to adopt the legal doctrine of “credit for time at liberty.” It serves neither the public’s

interest nor their protection to permit an inadvertent error on behalf of the State to

cancel any part of a prisoner’s punishment for the crimes for which he was justly

convicted and sentenced. Society has an interest in knowing that those who commit

crimes are serving the punishment to which they have been sentenced regardless of

negligent error attributed to the government. The fact remains that the appellant

has not served the time he was ordered to serve.



       As such we conclude that, although the appellant’s release was through no

fault of his own, the release was the result of simple negligence of the State and the

appellant is not entitled to credit for time spent at liberty. The judgment of the trial

court ordering that the appellant serve his sentence of confinement is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




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CONCUR:



________________________________________
JERRY L. SMITH, Judge



________________________________________
NORMA MCGEE OGLE, Judge




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