        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            JUNE SESSION, 1999
                                                               FILED
                                                                August 5, 1999
STATE OF TENNESSEE,           )    C.C.A. NO. 02C01-9810-CC-00310
                                                          Cecil Crowson, Jr.
                              )
                                                        Appellate Court Clerk
      Appellee,               )
                              )
                              )    MADISON COUNTY
VS.                           )
                              )    HON. ROY B. MORGAN, JR.
ROBERT M. McKNIGHT,           )    JUDGE
                              )
      Appe llant.             )    (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF MADISON COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

C. MARK DONAHOE                    PAUL G. SUMMERS
312 East Lafayette Street          Attorney General and Reporter
P.O. Box 2004
Jackson, TN 38302-2004             PATRICIA C. KUSSMANN
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   JERRY W OODALL
                                   District Attorney General

                                   SHAUN A. BROWN
                                   Assistant District Attorney General
                                   P.O. Box 2825
                                   Jackson, TN 38302



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                   OPINION

       In this appeal we determine whether the Defendant’s sentences for two

DUI conviction s expired during the time the s heriff could not incarcerate the

Defendant due to an overcr owde d jail. Th e trial co urt ruled that the Defe ndan t’s

sentences had not expired. We agree and affirm the judgment of the trial court.



       On May 7, 1997, the Defendant pleaded guilty to and was convicted of

DUI, second offense and DUI, third offense.1 For these convictions, he received

consecu tive senten ces of ele ven mo nths an d twenty-n ine days in the cou nty

workhouse. He was ordered to serve 150 days in confinement for one of the

convictions, followed by sixty days co nfinem ent for the o ther con viction, with the

balance of his sente nces to be s erved on pro bation . His effective sentence was

thus two years, with 2 10 days to be serv ed in con fineme nt. 2



       The Defendant imm ediate ly presented himself to the county sheriff’s office

to begin serving his sentences. He was told that no spac e was availab le for him

to serve his sentences and that he would be notified when to report. In August

of 1998, the Defen dant rec eived no tice from th e sheriff’s off ice that he w as to

report to begin serving his effective 210-day sentence.



       On September 3, 1998, the Defendant filed a “Motion for Post-Conviction

Relief and/or W rit of Habe as Cor pus.” He asserted that the notification to report


       1
           Tenn. Code Ann. §§ 55-10-401, -403.
       2
         The Defendant was also convicted of and sentenced for other offenses, none of which
is relevant to the issues presented in this appeal.

                                            -2-
to jail came over one year after his sentences became final and stated tha t “[t]o

require the Defendant to serve a sentence after expiration of the sentence is a

violation of the Defendant’s due process rights, violation of the credit for time at

liberty doctrin e and is a violation of the principle o f fundam ental fairne ss.”



       The trial court conducted a hearing on the Defendant’s motion, at which

time the pa rties stip ulated to the p ertinent facts as stated herein.          At the

conclusion of the hearing, the trial cou rt denied the D efendant re lief from h is

sentences, relying on th e provisions of Tennessee Code Annotated § 55-10-

403(p)(3). From this order, the Defendant now appeals.



       In this appeal, the Defendant relies primarily on State v. Walker, 905

S.W.2d 554 (T enn. 1995). The facts presented in Walker were qu ite similar to

those presented in the case at b ar. On August 27, 1990, Defendant Walker was

convicted of DUI and received a jail sentence of eleven months and twenty-nine

days, with all but twen ty days su spend ed. Id. at 555 . He re ported to the s heriff’s

office to begin serving his sentence and was told that no space was available and

that he would b e notified w hen to re port. Id. Almost two years later he received

the notice to re port to jail. Id. He sought relief from his sentence, alleging that

it had exp ired. Id. The trial court denied Walker relief and this Court affirmed,

however, our supreme court granted Walker re lief. Id. The C ourt bas ed its

decision upon a n interpre tation of our statutes, holding that “where persons under

a crimina l sente nce im med iately pr esen t them selves to the a pprop riate

authorities for incarc eration and a re turn ed aw ay the s enten ce in each case shall

begin to run when the judgment of conviction becomes final or the prisoner is

actually incarcerated , whichever is earlier.” Id. at 557.

                                          -3-
      In Walker, our supreme court first discussed the due process and

fundamental fairness concerns, including the “cred it for time at liberty” doctrine:

             The effect of an inordinate delay in the execution of a criminal
      judgment has been frequently litigated in other courts. Even w here
      the delay results from simple negligence or oversight, the courts
      have recognized that relief from the sentence might be ava ilable on
      due process grounds. In [these] cases the courts also analyzed the
      claims on the basis of waiver or estoppel but refused relief on any
      basis because of the high standard that must be met before relief is
      available. (The State’s action “must b e so affirm atively wron g or its
      inaction so grossly negligent that it would be un equivo cally
      inconsistent with ‘fundamental principles of libe rty and justic e’ to
      require a legal sentence to be served in the aftermath of such action
      of inaction.”)
             Another doctrine called “cred it for time at liberty” has been
      invoked where the de fendant has been incarce rated unde r a
      criminal judgmen t but erroneou sly released thro ugh no fault of h is
      own. Unde r those circ umsta nces the courts hold that his sentence
      continues to run wh ile he is at liberty. We know of no instance,
      however, where this doctrine has been applied to a situation w here
      no time at all has been served.
             In other cases, most of them in the state courts, where the
      defendant has presented himself for incarceration and has been
      refused admission for some reason (an overcr owde d jail or s imple
      inaction on the part of the jailer) the courts have said that the
      sentence began to run w hen th e defe ndan t did all that was required
      of him to allow the imposition of the criminal sentence.
             The lack of in depth analysis in some of the state
      case s—p articula rly the part played by state statutes—persuades us
      that there is no uniform constitutional standard that has been
      applied in cases where a defe ndan t is refus ed ad miss ion to th e jail
      because of overcrowded conditions. We cannot say that under
      those conditions the State’s action is so affirmatively wrong or
      gross ly neglig ent tha t further incarc eration would be inconsistent
      with fundamental principles of liberty and justice. We will, therefore,
      exam ine the qu estion ba sed on our own statutes.

Id. at 555-56 (citations o mitted).

      In the case at bar, as in Walker, we cannot conclude that service of the

Defe ndan t’s senten ces wo uld violate his due process rights or otherwise offend

principles of fundam ental fairness. He re, the Defend ant received an effective

sentence of two years.      Due to overcrowded jail conditions, space was not

availab le to acc omm odate incarceration of the D efendant for ap proximately a



                                        -4-
year after he was sentenced. Any inconvenience to the Defendant is certainly not

sufficient to violate D efenda nt’s due p rocess rights. Under these conditions and

circumstances, we ca nnot c onclu de tha t the Sta te’s ac tion is so affirma tively

wrong or gross ly negligen t that incarc eration w ould be inconsis tent with

fundamental principles of liberty and justice. We therefore examine the issue

based on the statutes enacted by our legislature.



       In Walker, our supreme court analyzed the applicable statutes and found

       a legislative intent that the sheriff shall commit a defendant to jail as
       soon as possible after the re ndition of th e judgm ent and that a
       judgment requiring incarceration should specifically provide that the
       sentence begins to run “on the day on wh ich the defen dant le gally
       comes into the custody of the sheriff for execution of the judgment
       of impriso nmen t.”

Id. at 556.


       The court also noted in W alker that the sheriff was authorized to convey

prisoners to othe r jails in the st ate if the jail in the sh eriff’s coun ty was insu fficient.

Id. The co urt noted that the sh eriff had not committed Walker to jail as soon as

possible because the re was n o proof in th e record that the sh eriff attemp ted to

find the “nearest su fficient jail.” Id. at 557.




                                              -5-
       The Walker court concluded as follows:

              What is the remedy for persons sentenced to jail who have
       presented themselves to the proper authorities for incarceration and
       have been denied their request to begin serving their sentences
       immed iately? We are persuad ed that our statutes requ ire more than
       a passive course of non-action that leaves such persons living
       indefin itely under an unexecuted criminal sentence. Therefore, we
       hold that wh ere pe rsons unde r a crim inal se ntenc e imm ediate ly
       present themselves to the appropriate authorities for incarceration
       and are turne d away th e sente nce in each case shall begin to run
       when the jud gme nt of co nviction beco mes final or th e priso ner is
       actually incarcerated , whichever is earlier.

Id. at 557 (em phasis add ed).


       It appears clear that the court’s decision in Walker was base d on statutory

construction and a determination of legislative intent. By the time our supreme

court’s opinion in Walker was filed, our legislature had enacted new statutes

concerning the time and manner of service of DUI sentences.3



       Chapter num ber 52 4 of the Public Acts of 1995 amended Tennessee Code

Annotated § 55-10-40 3 by adding the following new su bsection (p):

              (p)(1) An offender sentenced to a period of incarceration for
       a violation of Tennessee Code Annotated, 55-10-401, shall be
       required to commence service of such sentence within thirty (30)
       days of con viction or, if space is not immediately available in the
       approp riate municipal or cou nty jail or workhouse within such time,
       as soon as suc h spa ce is available. If in the opinion of the sheriff or
       chief administrative officer of a local jail or workhouse, space will not
       be available to allow an offender convicted of a violation of
       Tennessee Code Annota ted, 55-10-401, to commence service of
       such sentence within ninety (90) days of conviction, such sheriff or
       administrative officer shall use alternative facilities for the
       incarceration of such offender. If an offender convicted of a violation
       of Ten ness ee Co de An notate d, 55-1 0-401 , prior to th e effec tive date
       of this act has not commenced se rvice of the sentence imposed


       3
         The Walker court noted the passage of public chapter number 524 of the Acts of 1995
and observed that the new law “may” affect the ruling announced in Walker. Walker, 905
S.W.2d at 557 n.1. The new statutory provisions were not in effect until July 1, 1995 and only
applied to the service of sentences pronounced on or after that date. 1995 Tenn. Pub. Acts
524, sec. 3.

                                             -6-
       within ninety (90) days [of] such offender’s conviction, the sheriff or
       administrative officer sha ll, after notifying the offender, use
       alternative facilities for the incarceration of such offender. The
       approp riate county or municipal legislative body shall approve the
       alternative facilities to be used in such coun ty or municipality.
              (2) As used in this subsection “alternative facilities” include,
       but are not limited to, vacant schools or office buildings or any other
       building or structure owned , controlled or used by the ap propriate
       governmental entity that would be suitable for housing such
       offenders for short periods of time on an as-n eeded basis. A
       governmental entity may contract with another governmental entity
       or private corporation or person for the use of alternative facilities
       when needed and govern mental en tities may, by agreem ent, share
       use of alternative facilities.
              (3) Noth ing in th is subs ection shall be construed to give an
       offender a right to serve a sentence for a violation of Tennessee
       Code Annotated, Section 55-10-401, in an alternative facility or
       within a specified period of time. Failure of a sheriff or chief
       administrative officer of a jail to require an offender to serve such a
       sentence within a certain period of time or in a certa in facility or type
       of facility shall have no effect upon the validity of the sentence.

1995 Te nn. Pub. Ac ts 524, sec. 2 (em phasis add ed).



       This act specifically applies only to se ntenc es for D UI. Th is law cle arly

expresses the legislative intent that DUI offenders begin serving their sentences

within thirty days of conviction if space is available. If the sheriff is of the opinion

that space will not be available with in ninety da ys, the legis lature exp resses its

intent that the sheriff arrange for alternative facilities for the incarceration of the

offend er. Th e legis lature h as clea rly expressed its intent that jail sentences for

DUI conviction s be pro mptly se rved. W e believe, howev er, that the legislature

has also clearly expressed its intent that the failure of the sheriff to requ ire a DUI

offender to serve a sentence within a certain period of time does not relieve the

offender from the requirement of serving the sentence.



       In summarizing the proposed bill to the mem bers of the Jud iciary

Committee of the Tennessee House of Representatives, Representative Roy

                                          -7-
Herron, the sponsor of the bill, explained that the legislation provided “if the

sheriff doesn ’t require that as he’s su ppos ed to . . . if so meh ow the ball’s

dropped, that doesn’t mean you don’t have to serve the time.” He further stated

that the bill “makes clear that if for some reaso n, you d on’t be gin se rving w ithin

the time per iod requ ired by law , that that doesn’t mean your sentence is no

longer valid.” H. Judiciary Comm., 99th Gen. Assembly (Tenn., Apr. 5, 1995)

(statemen t of Represen tative Roy Herro n).



      W e believe that by ena cting chapter n umber 524 of the Public Acts of

1995, the legislatu re intend ed that a DUI offender not escape responsibility for

serving a sentence simply because space was not available to serve th e

sentence in the co unty jail w ithin a s pecifie d period o f time.        Sub ject to

constitutional constraints, policy decisions su ch as this are within the purview of

the legislature. Under the facts presented in this case, we cannot conclude that

requiring the De fenda nt to se rve his s enten ce wo uld be inconsisten t with

fundamental principles of liberty and justice in violation of the Defendant’s due

process rights.



       The judgment of the trial court is accordingly affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE


CONCUR:



___________________________________

                                          -8-
DAVID G. HAYES, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




                              -9-
