### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M arch 13, 2002
PATRICK E. SIM PSON v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County

No. 98-C-2259 Steve R. Dozier, Judge

No. M2001-02021-CCA-R3-CO - Filed March 22, 2001

The petit ioner originally pled guilty, pursuant to a negotiated plea agreement, to two counts of aggravated

assault for agreed sentences of three years on each count, to run concurre ntly with each other but consecutively to a parole violation. The petitioner over two years later filed a “Petition for Review of Sentence” with the trial court alleging the judgment form omitted mention of the agreed upon pretria

l jail cre dits. The trial court dismissed the petition finding it was without jurisdiction since the petitioner was “serving his sentence with TDOC for

his parole violation.” The petitioner challenges this ru lin g in this appeal, and additionally alleges he is serving his sentence in the Department

of Correct ion, rather than a

t the Davi dson County

Workhou se, in con

travent ion of his written plea agreement. We dismiss the appeal.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

J OE G. R ILEY , J., delivered the opinion of the court, in which T HOMAS T

. W O ODALL and J OHN E VERETT W ILL IAMS , JJ., joined. Patrick E. Simpson, Clifton, Tennessee, Pro Se

. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney Genera l; Victor S. Johnson, III, District Attor ney Gene ral; and Jon P. Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION A. Procedural History

The petit ioner wa s o riginally convicted on three counts of armed robbery a nd malicious shooting for

events occurring on February 5, 1977, for which he received a lengthy sentence . After his release and while on parole, he was a rrested and indicted for two counts of attempted first degree murder for

events occurring on February 28, 1998. The petitioner pled guilty on January 6, 1999,-2-

pursuant to a negotiated plea agreement, to two counts of aggra vatedassault for

agreed concurrent sentences of three years for e ach count to run consecutively to his parole violation.
According to the trial court’s order, p etitioner earlier filed a “ motion to co

rrect ju dgment to receivejail credits” on December 5, 2000. The motion was dismissed by the trial court for lack of jurisdiction. Petitioner’s appeal to this court was dismissed as untimely; however, this court noted that petitioner should seek relief through theAdministrative Procedures Act pursuant to Tennessee Code Annotated sections 4-5-101 et seq

. Statev. Patrick E. Simpson , No. M2000-03229-CCA-R3- CD (Tenn. Cr

im. App. Fe

b. 7, 2001, at Nashville) (or der dismis sing appe al). Thiscourt furthe r deniedthe petition to rehear but noted petitioner, having been sentenced to the county workhouse, might still be ab le to seek r elief in the trial court pursuant to Tennessee Code Annotated section 40- 35-114(c). State v. Patrick Simpson , No. M2000 -03229-C CA-R3-CD ( Tenn. Crim. App. Feb. 28, 2001, at Nashville) (order denying pe tition to re hear). This statu

te grant s the tria

l court fu ll jurisdiction over a

person serving a sentence in the county jail or workhouse. However, this court very probably was unaware that the petitioner was not actually confined in the county workhouse, butinstead was incarcerated in a Department of Correction fa

cility. Ap

parentl y based u pon this court’s suggestion, petitioner filed the present petition on March 15, 2001.

It appears, as we have gathered from the record, that the petitioner at the time of filing the present petition was incarcerated in a Department of Correction facility in Wayne County. The trial court dismissed the petition for lack of jurisdiction. Th e record i s sparse but does contain an executed plea agreement form; it states petitioner agreed to plead guilty to two counts of aggravated assault for

concurrent

three- year se

ntences . Additiona

lly, it state s he is to receive “ credit f or time served.” The petitione r’s judgment form indicates he was to serve his concurre nt three-year sentences in the cou

nty workh ouse “co nsecutiv e to [his] pa role viola tion;” it lis ted no pre

trial jail credits.

B. Place of Confinem ent

Pe titio ner contends he is currently serving his concurrent three-y ear-sentences in a Department

of Corre ction fa

cility rather than in the count y workhouse, which is in contravention of his plea agreement. On appea l, he contends the trial court erred in "fail [ing] to ent

er an ap propria te ord er sentencingthe Appellant to the Davidson County Workhouse pursuant to a c ourt approved Plea Agreement." Initially , we note th is issue wasnot prese

nted to the

trial cou rt; howev er, we w ill address it.

It is undisputed that the judgment form reflects that the three-y ear concurrent sentences a re to be served in the county workhou se, not the Te nnessee Department of Correction. I n the event petitioner is correct in alleging he has fully

served his parole revocation sentence in the D epartment of Correction and

has now beg

un servin g the thr

ee-y ear sen tence, h e is still no t entitled

to relief in the Davidson

County trial cou rt. The tria

l court did not err in failing to issue another order reflecting th at the place of confinement is the county workhouse; the judgment already contained thi s information. As su mi ng pe ti ti on er ha s n ot be en re le as ed on pa ro le an d i s p re se nt ly c onfined in a-3-

Department

of Correc t ion facility serving the three-y ear sentence, it may well be that he can seek habeas corpus relief in the county of his confine ment. See Tenn. Code Ann. § 29-21-105. Petitioner is appare ntly confine d in a Dep artment o f Correction fac ility in Clifton, Wayne County , Tennessee. We voice no opinion as to the likelihood of success of a habeas corpus petition.
C. Pretrial Jail Credits
Petitioner contends the trial court erroneously neglected to award him pretrial jail credits as specified in the plea agreement. The written plea of guilty provide d that the petitioner would receive “credit for time served.” The judgment form provides for no pretrial jail credits.

Ge ne ra ll y, a motion to correct the denial of pretrial jail credits, filed after the judgment has become final and after the trial court has lost jurisdiction, is unavailing. Cox v. State , 53 S.W.2d 287, 292-93 (Tenn. Crim. App. 2001) (citations omitted). Further, there is no appeal “as a matter of right” from such a motion. Id . at 293. T he trial c ourt doesr et ai n j ur is di ct io n t o m od if y a sentence, however, during the time the defendant is incarcer atedin the loc al jail or

workhous e or is awaiting transfer to the Department of Correction. See Tenn. Code Ann. §§ 40-35-212(c), -314(c). In the instantcase the judgments had become final long before the filing of the instant petition, and, for whatever reason, the petiti oner wa s not conf ined in the

county jail or co unty workhous e. Thus, under these general rules, the tr ial court would not have jurisdiction to modify the judgment.
However, if such a motion can be viewed as a timely filed motion to reduce sentence pursuant to Rule 35(b) of the Tennes see Rules of Criminal Procedure, or as a motion to correct “[c]lerical mistakes” in a judgment pursuant to Ru le 36 of the Tennessee Rules of Criminal Procedure, the trial

court ha s jurisdic ti on to rul e upon such requests. Cox , 53 S.W.3d at 292. Cl ea rl y, petitioner is entitled to no relief under Rul e 35(b) because the present petition was filed
more than 120 days af

ter the sentence was imposed. Neverth eless, as the state concedes, this petition could be viewed as one seeking relief from a clerical mistake, w h ich may be filed “ at any time.” Tenn. R. Cr

im. P. 36; State v. Pe

nderg rass , 937 S.W.2d 834, 837 (Tenn. 1996).

Even if the petition should be considered as a Rule 36 motion, the question remains whether this matter is the proper subject of a Rule 3 appeal as of right. See Tenn. R. App. P. 3(b). An appeal from the denial of a Rule 36 motion is not listed among those matte rs appea lable as a matter of right. See Tenn. R. App. P. 3(b); Ronald Gary Deville v . State , No. 01C01 -910 5-CC- 00155 , 1991 WL 202435, at *1 (Tenn. Crim. App. Oct. 11, 1991, at Nashville). However, the common law writ of certiora ri may

on rare occasio ns be gr

anted to r

eview se ntencing infirmitie s not other

wise appealable. Cox , 53 S. W.3d a t 294. We will now de

termine i f this is one of those rare occasions al lo wi ng re vi ew by certiora ri , even if we assume this to be a Rule 36 motion.
The common law writ of certiora ri is limited to address ing an in

fer ior tribunal’s “exce ed[i ng] its jurisdict

ion” or a cting “ illega

lly, ” when th

ere is “no other

plain, speedy

or adequ ate remedy .” Tenn. Code Ann. § 27-8-10 1; Cox , 53 S.W.3d a t 294. I n this instance we are

unable to conclude the trial court exceeded its jurisdiction or acted illegally . Furthermore, petitioner has an-4-

adequa te remedy th rough the Uniform Administrative Procedures Act. See Tenn. Code Ann. § 4-5- 101 et seq

. We do not beli eve this isone of the “unique circumsta

nces” where th

e trial c ourt is in

the best position to calculate pretrial jail credits. See State v. Henry , 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997). The documentation in the record indicates that the parole boa rd on June 10, 1999, some five months after th

e guilty ple a to the current charges, re voked pa role and ruled the petitione r would begin serving the new three-year sentenc e on January 6, 2001. See Tenn. Code Ann. § 40-28-123(a). The document also noted the parole violation warrant was served April 2, 1998. It is probable the parole boardc redited and/or allocated all time from April 2, 1998, to January 6, 2001, toward the parole revocation. If so, the

time betw een the p etitioner ’s arrest on the subject charges while he was in custody a

nd April 2, 1998, hav e not bee n credit ed. Clea rly, petit ioner is n ot entitle d to double credits; however, he is entitled to credit on one sentence or the othe r for al l the time he wa s in custody.

Neverth eless, we are

unable to make these determinations from the record. It further appears the crucial issue involving jail credits revolves around the parole boar d’s actions months after

entry of the guilty plea. Accordingly, we are unable to conclude the trial court is in the best position to determine proper c

redits. T hus, there is no basis for certiora ri relief. Petitioner should seek relief through the Administrative Procedures Act.

For these re asons, we conc lude this ma tter is not properl y before this court and dismiss the appeal.

JOE G. RILEY, JUDGE