# FILED
Au gust 7, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk CHRISTOPHER JOHNSON, ) ) Petitioner/Appe llant, ) ) Appeal No. ) 01-A-01-9602- CH-00064 VS. ) ) Davidson Chancery ) No. 95-2065-II TENNESSEE DEPARTMENT OF ) CORRECTION, ) ) Respondent/Appell ee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LY LE, CHANCEL LOR

CHRISTOPHERJOHNSON 2514 Dodson Avenue Chattanooga, Tennes see 37406 Pro Se/Petiti oner/Appellant CHARLES W. BURSON Attorney Gen eral and Repor ter PATRICIA C. KUSSMANN Assistant Att orney Gener al 404 James Roberts on Parkway Suite 2000 Nashvil le, Tennessee 37243 Attorney for Respondent/Appell ee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

A convicted burglar in the custody of the Department of

Correcti on filed a petition with the Chancery Court of Davidson Co unty for an order direc ting the Departmentto award h im additional c redits agai nst his sentence fortime spent in jail before and after trial, and for sentence red uction credi ts he alleg edly earned during the same period of incarceration. The Chancellor found that Mr. Jo hnson had already recei ved al l the c redit s to w hich h e was entit led. We affirm.

I.
Christopher

Johnson was arrested for burglary on September 21, 1984. He was tri ed and convic ted of first degree bu rglary in t he court of JudgeJoseph D iRisio, and was sen tenced to fifteen year s imprisonment on October 15 , 1986
. Followi ng a subsequent trial in the court of Judg e Douglas M eyer, the j ury found him guilty of another charg e of second degree burglary , and on May 12, 1987 a ten year se ntence was impose d on him for that offense, to be served consecutivel y to h i s fifteen year sente nce, resultingin a total effective sentence of twenty-five years. Mr. Johnson was unable to post bond, and he r emained in the Hami lton Coun ty Ja il throughout

his two trials and convictions, until he was transferred to the peniten tiary on May 3, 198 8.

Judge Meyers’ judgment rec ited that theappellant would be allowed jail credit “from and after Septe m ber 22, 1984.” W hen Mr. Johnson began serving his time in the penitenti ary, he received 1,321 d ays ofpretrial jail credi ts, whic h the Department of Corr

ection applied towards hi s initial fifteen year senten ce.- 3 - Mr. Johnson ar

gues that he was entitled to receive credit agai nst both sentences for the tim e he spent in jail, on the gr oun d tha t he wa s ent itle d to re ceive such credits on h is first sent ence under Tenn. Code Ann. § 40-23 -101(b), and that additionally the pr ovi sion for jail credi t on Mr . Johns on’s s econd s entenc e became binding on the Department of Correction once Judge Meyers’ judgment becam e final, whether any

part of that judg ment was err oneous or not. Tenn. Code Ann. § 40- 23-101(b) re ads in relev ant part: The trial court shall, at the time the sentence is imposed and the defendant committed tojail, theworkhous e, or the state peni tent iaryfor imprisonment, render the ju dgment of the court so as to allow the defendant credit o n his sentence for any period of time fo r which he was committed and held in the city j ail . . . pend ing his ar raignment and t rial. The defendant shall als o receivecredit on hi s sentence for the time he served in the jail, workhous e o r p enitentiary subsequent

to any conv iction ari sing out of t he original offense for which he was tri ed.

If we were to accept Mr. Johnson’s ingenious argument, he would rece ive two da ys of penitentiary credit for each day spent in the Hamilton County Jail. However, t he above-q uoted statute was not enacted to c reate a greater benefit for those who face multiple trials than for those who are only subject to a s ingle tri al. As the Court of Cr iminal Appeals has stated: The purpose of the statu te was to provide jail time credit prior and subsequently to convic tion for indigents unable to make bond. The legisla ture in its wisdom recognized an injustice between the person of

means who could make bond and the person w ho coul d not and had to languish in jail.” State v. Abernathy

, 649 S.W .2d 285, 286 (Tenn . Cr. App. 1983). We therefore find that M r. Johnson received all the benefit t he statute entitled him to when his pe nitent iary time was reduced day for day by his time in jail.
If the judgment i n the second tri al could be i nterpreted to allow Mr. Johnson to applythe same jail time twi ce to reduce tw o consecutive sentences (and- 4 -

we are not conv inced that it does ), the n Judge Meyers is enti tled to correct the judgmentfor illegality, even though it has become final, be cause it has contravened the terms of Tenn. Cod e Ann. § 40-23-101(b). See State v. Burkhart , 566 S.W.2d 871 (Tenn. 1978).

II.

The appellant als o argues that he d i d not receive sentence reduct ion creditsthat he was

entitled to for the time he spent in jail after

his convi ction, prior to his transfer

to State custody. W hile Mr. Johnson notes that the ch ancellor incorrectly stated that he was seeking sentence reduction credits for “pretrial jail time,” w hen he was actually

seeking s uch creditsfor post-conv iction jail time, this error does not aff ect the correctness of the chancery court’s dete rmination that h e was not ent itled to the relief he soug ht.

Tenn. Code An n. § 41-21-236 enabl es inmates committ ed to the custody of the Department of Cor rection to receive s e ntence reductio n credits for good insti tuti ona l beh avi or. A n amendment to that stat ute added a sectio n that extended the same sentence reducti on privi leges forthe time that a convicted felon was incarcerated prior to sentencing (Acts 1989, Ch. 42, § 2 ).

Howeve r that section was enacted after M r. Johnson was transferred to t he penitentiary, and the amen ded section contains no suggestion th at sentence reduction credi ts for p re-s entenc ing j ail ti me was to be awa rded retro acti vely. As our SupremeCourt has said, “A law will not be given a retrospec tive operat ion, unless th at intention has been manifested by th e mo st clear and unequivocal expres sion.” Henderson

v. Ford , 488 S.W.2d 720, 721 (Tenn. 1972), q uoting Jennings v. Jennings , 165 Tenn. 295, 54 S.W .2d 961 (1932).- 5 - III.

The jud gmen t of t he tr ial cour t isaffi rmed. Rema nd this cause t o the Chance ry

Court of Dav idson County for further proce edings consi stent wit h t hi s opinion. Tax the costs on appeal to the appellant.

_________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

________________________________ WILLIAM C. KOCH, JR., J UDGE