FILED

August 7, 1996

Cecil W. Crowson

Appellate Court Clerk

CHRISTOPHER JOHNSON, )

)

Petitioner/Appellant, )

) Appeal No.

) 01-A-01-9602-CH-00064

VS. )

) Davidson Chancery

) No. 95-2065-II

TENNESSEE DEPARTMENT OF )

CORRECTION, )

)

Respondent/Appellee. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

CHRISTOPHER JOHNSON

2514 Dodson Avenue

Chattanooga, Tennessee 37406

Pro Se/Petitioner/Appellant

CHARLES W. BURSON

Attorney General and Reporter

PATRICIA C. KUSSMANN

Assistant Attorney General

404 James Robertson Parkway

Suite 2000

Nashville, Tennessee 37243

Attorney for Respondent/Appellee

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

KOCH, J.
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O P I N I O N

A convicted burglar in the custody of the Department of Correction filed

a petition with the Chancery Court of Davidson County for an order directing the

Department to award him additional credits against his sentence for time spent in jail

before and after trial, and for sentence reduction credits he allegedly earned during

the same period of incarceration. The Chancellor found that Mr. Johnson had already

received all the credits to which he was entitled. We affirm.

I.

Christopher Johnson was arrested for burglary on September 21, 1984.

He was tried and convicted of first degree burglary in the court of Judge Joseph

DiRisio, and was sentenced to fifteen years imprisonment on October 15, 1986.

Following a subsequent trial in the court of Judge Douglas Meyer, the jury found him

guilty of another charge of second degree burglary, and on May 12, 1987 a ten year

sentence was imposed on him for that offense, to be served consecutively to his

fifteen year sentence, resulting in a total effective sentence of twenty-five years. Mr.

Johnson was unable to post bond, and he remained in the Hamilton County Jail

throughout his two trials and convictions, until he was transferred to the penitentiary

on May 3, 1988.

Judge Meyers’ judgment recited that the appellant would be allowed jail

credit “from and after September 22, 1984.” When Mr. Johnson began serving his

time in the penitentiary, he received 1,321 days of pretrial jail credits, which the

Department of Correction applied towards his initial fifteen year sentence.
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Mr. Johnson argues that he was entitled to receive credit against both

sentences for the time he spent in jail, on the ground that he was entitled to receive

such credits on his first sentence under Tenn. Code Ann. § 40-23-101(b), and that

additionally the provision for jail credit on Mr. Johnson’s second sentence became

binding on the Department of Correction once Judge Meyers’ judgment became final,

whether any part of that judgment was erroneous or not.

Tenn. Code Ann. § 40-23-101(b) reads in relevant part:

The trial court shall, at the time the sentence is imposed and

the defendant committed to jail, the workhouse, or the state

penitentiary for imprisonment, render the judgment of the

court so as to allow the defendant credit on his sentence for

any period of time for which he was committed and held in

the city jail . . . pending his arraignment and trial. The

defendant shall also receive credit on his sentence for the

time he served in the jail, workhouse or penitentiary

subsequent to any conviction arising out of the original

offense for which he was tried.

If we were to accept Mr. Johnson’s ingenious argument, he would

receive two days of penitentiary credit for each day spent in the Hamilton County Jail.

However, the above-quoted statute was not enacted to create a greater benefit for

those who face multiple trials than for those who are only subject to a single trial. As

the Court of Criminal Appeals has stated:

The purpose of the statute was to provide jail time credit prior

and subsequently to conviction for indigents unable to make

bond. The legislature in its wisdom recognized an injustice

between the person of means who could make bond and the

person who could not and had to languish in jail.” State v.

Abernathy, 649 S.W.2d 285, 286 (Tenn. Cr. App. 1983).

We therefore find that Mr. Johnson received all the benefit the statute

entitled him to when his penitentiary time was reduced day for day by his time in jail.

If the judgment in the second trial could be interpreted to allow Mr.

Johnson to apply the same jail time twice to reduce two consecutive sentences (and
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we are not convinced that it does), then Judge Meyers is entitled to correct the

judgment for illegality, even though it has become final, because it has contravened

the terms of Tenn. Code Ann. § 40-23-101(b). See State v. Burkhart, 566 S.W.2d 871

(Tenn. 1978).

II.

The appellant also argues that he did not receive sentence reduction

credits that he was entitled to for the time he spent in jail after his conviction, prior to

his transfer to State custody. While Mr. Johnson notes that the chancellor incorrectly

stated that he was seeking sentence reduction credits for “pretrial jail time,” when he

was actually seeking such credits for post-conviction jail time, this error does not affect

the correctness of the chancery court’s determination that he was not entitled to the

relief he sought.

Tenn. Code Ann. § 41-21-236 enables inmates committed to the

custody of the Department of Correction to receive sentence reduction credits for

good institutional behavior. An amendment to that statute added a section that

extended the same sentence reduction privileges for the time that a convicted felon

was incarcerated prior to sentencing (Acts 1989, Ch. 42, § 2).

However that section was enacted after Mr. Johnson was transferred to

the penitentiary, and the amended section contains no suggestion that sentence

reduction credits for pre-sentencing jail time was to be awarded retroactively. As our

Supreme Court has said, “A law will not be given a retrospective operation, unless that

intention has been manifested by the most clear and unequivocal expression.”

Henderson v. Ford, 488 S.W.2d 720, 721 (Tenn. 1972), quoting Jennings v. Jennings,

165 Tenn. 295, 54 S.W.2d 961 (1932).
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III.

The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.

_________________________________

BEN H. CANTRELL, JUDGE

CONCUR:

________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

________________________________

WILLIAM C. KOCH, JR., JUDGE