# FILED

June 29, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MAY SESSION,

1999

STATE OF TENN ESSEE, ) ) 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 Repor ter Attorneys for Appellant 131 North Church Street Marvin E. Clement s, Jr. Murfreesboro, TN 37130 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William C. Whitesell, Jr. District Attorney General 3rd Floor, Ruthe rford Co. Judici al Bldg. Murfreesboro, TN 37130

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 On the date of t he hearing, the appell ant had been rel eased from the workhouse for 334 days and, appar

ently , had successful ly completed his 307 day s probation on those sentences he had be en serv ing prior to his escap e. 2 OPINION

The appellant, Terry C. Mea dors, appeals the order enter ed by the Rutherford County Circuit Court returning hi m to confinement after his inadvert ent release by the Sheriff’s Department. W hile 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 offe nder. This sentence, entered December 11, 1996, was ordered to be serv ed consecutively to a prior sentence the appellant w as serving at the ti me of his escape. On June 23, 1997, the appellant was gr anted probation for those sentences he was serving pr

ior to his escape. Notwithstanding the TDOC detainer for escape, the appellant, on June 23, 1997, was inadvertently released from his confinemen t in the Rutherford County Workhouse.

During a routine file ch eck, Linda Boyle, a superv isor at TDOC, discov

ered that the appellant had never served his 18 month sentence. A he aring was held in the Rutherford County Cir cuit 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 ap pellant’s consecutive sentence for escape began to run on June 23, 1997, when he was e rroneously released from the custody of the workhouse. As such, the court concluded that the appell ant’s entire 18 month sentence remained unserved. Indeed, “[t]he 18 m onth 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 i mmediately present themselv es to the appropriate authority for incarceration and are turned away, the senten ce in each case begins to run w hen the judgment of conviction becomes final or the defendant is actually incar cerated, whichever is earlier”). Acc ordingly, the court3

ordered the appellant to begi n service of his 18 month sent ence for escape and gave the appellant until June 11, 1998, to report to the w orkhouse.

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 doctr ine of “credit for time at liberty,” he asserts t hat a rang e I offe nder servi ng an 18 mo nth sent ence would receive mandatory probation after complet ion of 30 percent service, or 5.4 months. Accordingly, he arg ues that he is entitled to immedi ate release on probation.

Analysis

American courts have art iculated three principal theories under which an inmate wh o is errone ously rele ased fro m confin ement m ay be enti tled to re lief. Two of these theories, waiv

er of jurisdiction and esto ppel, 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 j urisdiction theory, the government waiv es the right to reincarcerate when it

s’ actions are so affirmativ ely improper or gr

ossly negligent that it would be unequiv

ocally inconsistent w

ith fundamental principles of libe rty and justice to require a l egal sentence to be serv ed 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. Christianse n , 732 F.2d 1397, 1399 (9th Cir. 1984)( citation omitted). Similarly,under the estoppel theory, the government is estopped fr om reincarcerating an in mate when: (1) the party to be estoppe d must know the facts; (2) he must intend that his conduct shall be act ed upon or must act so that the par ty4 asserting the estoppel has a right to believe i t is so intended; (3) the party asserting the estoppel must be ignorant of the facts ; and (4) that party must rely on th e former’s conduct to his inj ury.
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 wai ver of jurisdiction th eory, which is pr edicated upon principle s of gross negligenc e, nor the estoppe l theory, wh ich require s affirm ative misconduct, is applicable t o 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 revi ew of a prisoner who i s discharged or releas ed from confinement by mistake, the appellant, i n the case sub judice , argues for application of the doctrine of “credit at time at liberty.” See Walker , 905 S.W.2d at 556. T his doctrine, based upon notions of fairness, provides that, “a convicted person is entitled to credit agains t his sentence for time when h e was erroneously at liberty provided there is a show ing of simple or mere negl igence on behalf of the government and provided the delay in executio n of sentence was through no fault of his own,” in other words , his sentence continues to r un while he is at libe rty. See Chapman , 977 S.W .2d at 125 (quot ing See United States v. Marti nez , 837 F.2d 861, 864 (9th Cir. 1988); Walker , 905 S.W .2d at 556 (citin g Christiansen , 732 F.2d at 1397; Smith v. Swope , 91 F.2d 260 (9th Cir. 1937) ).

Notwithstanding adopti on of this legal doctrine by several of our sister states and by the federal courts, the state of Tenne ssee 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 libert y must, when the error

is discovered, serve the full sentence imposed.” Chapman , 977 S.W.2d at 126. Accordingly, the rationa le 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 liber ty5

because imprisonment is ‘confinement in f act, not in legal or other fiction.’” Chapman , 977 S.W .2d at 125 (citin g 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 judg ment of sentence can onlybe satisfied with a term of imprisonment. See Commonwealth v. Blair , 699 A.2d 738, 740 (Pa.Super. 1997) (citation s omitted).

Despite the appellant’s rel iance on judicial precedent from sister states and his argument asking th is court to distingui sh his case from Chapman , we find no reason to depart from the sound log ic 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 protec tion to permit an inadvert ent error on behalf of the State to cancel any part of a prisoner’s punishment for the crimes fo r 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 regardl ess of negligent error attr

ibuted to the government. The fact remains that the appellant has not served the time he w as ordered to serve.

As such we conclude that, although the appellant’s re lease was through no fault of his own, the release w as the result of simple negl igence of the State and the appellant is not entitled to c redit for time spent at liber ty. The judgment of the trial court ordering that the appellant serve his senten ce of confinement is affirmed.

____________________________________ DAVID G. HAYES, Jud ge6

CONCUR:

________________________________________ JERRY L. SMITH, Jud ge

________________________________________ NORMA MCGEE OGLE, J udge