1 Judge DiRisio sign ed the M ay 25, 199 0, order setti ng aside jail

credits. On March 6, 1999, Judge Meyer denied the defendan t's motion to co rrect the senten ce. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on Briefs A

pril 25, 2001
STATE OF TENNESSEE v. NOAH J. LOVE Direct Appeal from the Criminal Court for Hamilton County Nos. 16229 7, 162298, 162299, 16 2300 Josep h F. DiRisio, Judge & Douglas A. Meyer, Judge 1

No. E2000-00254-CCA-R3-CD May 16, 2001
The defendant, Noah J. Love, appeals the trial court's denial of his motion to correct his sentence. The single issue presented for review is whether the trial court properly de nied relief. Because the trial court ha d no jur isdiction to amend the sentence four years after the defe ndant had been transferred to the Department of Correction, the judgment is reversed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Reversed.
G ARY R. W ADE , P.J., delivered the o pinion of the court

, in which J ERRY L. S MITH and T HOMAS T. W OODALL , JJ., joined. Noah J. Love, Clifton, Tennessee, pro se.
Paul G. Summers, Attorney General & Report er; J. Ross Dyer, Assistant Attorney General; and Dea n Ferraro, Assistant District Attorney General, for the appe llee, State of Tennessee.
OPINION
On April22, 1986, the defendant pled guilty to two counts of aggravated kidnapping and two counts of assault with intent to commit rape. The trial court imposed Range I, concurrent sentences of 25 years on each of

the aggravated

kidnapping convictions and Range II, conc urrent sentences of 10 yearson each of the assault convictions. The sentences for assault with intent to commit rape were ordered to be served consecutively to the sentences for aggravated kidnapping. The effe ctive term, therefore, was 35 years. The judgments also re flected 244 days of jail credit.
On May 14, 1990, the state fil ed a motion to

correct a clerical error, contending that the trial court had inadvertently ordered the 244 day s jail credit. Eleven days later, the trial court entered an order setting aside the credit. On March 26, 1999, almost nine years after the order modifying the amount of jail credit,

the defendant filed

a motion to correct the sentence, alleging that the trial court-2-

had prope rly cred ited t he 244 days as a part of the plea a greeme nt. In addition, he maintained that the trial court had no jurisdiction to enter the order of modification.
In his motio n to correct , the defend ant allege d that in February of 1999, after obtaining permission to review his institutional file, he first discovered the order which del ete d th e 24 4 da ys of j ail credit. The record contains no response from the district attorney' s office. There was no evidentiary

hearing. On May 6, 1999, the trial court denied relief on the basis that "Chief

Deputy Clerk Edna Camp researched the defendant's record and it has been dete rmined that he has received all the jail credit th at is due him."
In this appeal, the defendant argues that the trial court lacked

jurisdiction to set a

side his jail credit because the order of correction was filed more than 120 days after the judgment. See Tenn. R. Crim. P. 35(b). In response, the state argues that the defendant must pursue his claim under the Uniform Administrative Procedures Act. See Tenn. Code Ann. §§ 4-5-101 to -325.
Tennessee Code Annotated Section 40-35-212 governs the jurisdiction pr ovided trial cour

ts in the imposition of se

ntences. While trial courts retain full jurisdiction over defendants awaiting transfer to the Department

of Correction, inc

luding those

being housed in a local jail or workhouse, such jurisdiction continues only until "the defendant is actually transf erred to the physical

custody of the department." Tenn. Code Ann. § 4 0-35-2 12(d); State v. Bowling , 958 S.W.2d 362 (Tenn. Crim. App. 1997).
The judgment of a tr

ial court b ecomes final 30 days after entry , absent a timely notice of appeal or an appropriate post-trial motion. Tenn. R. App. P. 4. When the judgment is final, the trial court generally loses jurisdiction to alter or amend. Ray v. State , 576 S.W.2d 598, 602 (Tenn. Crim. App. 1978); State v. Bouchard , 563 S.W.2d 561, 563-64 (Tenn. Crim. App. 1977). Rule 35(b) of the Tennessee Ru

les of Criminal Proc

edure provides f

or an exception, ho

wever, upon a moti

on to correct or reduce filed within 120 days after sentenc e is imposed. See State v. Bi ggs , 769 S.W.2d 506 (Tenn. Crim. App. 1988).
It is undisputed that the defendant entered into a pl ea agreemen

t with the state. The

state acknowledges that

the judgments entered as a part of the plea agreement awarde d the defendant 244 days in jail credits, " from and after A ugust 22, 1985." Those judgments, which were entered April 22, 1986, imposed sentences within the statutory range and otherwise bear f acial validity.
The general rule is that an illegal sentence, as opposed to an erroneous sentence , m ay b e corrected at anytime. State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1 978). Here, t he defendant filed a motion to cor

rect his sentenc

e as it was amended by the trial court's 1990 ord er. T ypic all y, a challenge to a

n illegal senten

ce by an inc

arcerated def

endant should be ma

de by a petit

ion for writ of habea s c orpus. See Stephenson v. Carlton , 28 S.W.3d 910 (Tenn. 2000); Freddie Cupples v. State , No. 02C01-9511-CC-00333, slip op. at 3 (Tenn. Crim. App., at Jackson, Oct. 22, 1996), app. denied (Tenn. 1997). Habeas corpus relief is available when it appears on the face of the judgment or the record upon w

hich the judgmen

t is e ntered th at the trial court was without jurisdic

tion to-3-

sentence or that

the sentence has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993); see also Ussery v. Avery , 222 Tenn. 50, 432 S.W.2d 656 (1968).
This court has also considered an attack on an i llegal sentence by way

of post-conviction petition, holding that the a ction is not barre

d by the appl

icable statute of

limitations. Kevin Lavell Abston v. State , No. 02C01-9807-CR-00212, slip op. at 3 (Tenn. Crim. App., at Jackson, Dec. 30, 1998) (cit ing State v. Mahler , 735 S.W.2d 226, 228 (Tenn. 1987)) ; see also James Gordon Coons, III v. State , No. 01C01-9801-CR -00014, slip op. at 6

(Tenn. Crim. App., at

Nashville, May 6, 1999). Rule 3(b) of the Tennessee Rules of Appellate Procedu re does not recognize a direct appeal of a dismissal of a motion to corr ect an illegal s

entence, th

e method of attack in this instance. In the interests of justice, however, an order denying a petition to corre ct an illegal sentence may

be treated by this court as a pet

ition for writ

of certiorari. State v. Donald Ree Jones , No. M2000-00381-CCAR3-CD, slip op. at 3 (Tenn. Crim. App., at Nashville, Oct. 13, 2 000); see al so State v. Leath , 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998).
In Jones , a

panel of this court ruled that when a petitioner seeks relief from an illegal sentence by way of habe as corp us, he may do so in the convicting court, as is the case here, rathe r than the court nearest his place of incarceration (Wayne County in this case) because the former can correct an illegal sentence at any time and is in possession of the records pertaining to the sentence. Jones , slip op. at 2-3. This court ruled that the convenience of having the records pr es ent provides a s ufficient reason for the convicting court to exercise jurisdiction despite the terms of T enn. Cod e Ann. § 29-21-105, which stat es that the habeas corpus application should be made to the court or judge most conve

nient in point of dista

nce to the applica

nt.
In State v . Bruce C . Reliford , No. W1999-00826-C CA-R3-CD, slip op. a

t 2 (Tenn. Crim. App., at Jackson, Oc t . 2, 2000), this court treated an improper appeal of a motion to correct an allegedly illegal sentenc

e as a common law p

etition for writ of

certiorari bec

ause the asserted claim was that the trial court had "'exceeded the jurisdiction conferred, or [was] acting illeg

ally, when,

in the judgment of the court, there [was] no other plain, spe edy, or adequate remedy.'" In the intere st of justice, this court chooses to treat the motion to correct as a petition for writ of certiorari.
A s entence is illegal if it directly contravened a statute in existence at the time it was imposed. Taylor v. Sta

te , 995 S.W.2d 78, 85 (Tenn. 1999). Here, the state's motion to correct the judgment was filed over four years after the trial court approved a plea agreement which included the entry of

judgments granting jail credit. Because the effect of the a mended order was to modify the term of the sentence and thetrial court no longer had jurisdiction, the judgment was, in our view, illegal: [T]he trial judge reta ins jurisdiction to mo

dify any sentence which i

s to be served in the jail or workhouse. . . . However, the statute deprives the court of aut hor ity t o modify a sentence to the department of correction[] once the judgment is final in the trial court.-4-

Tenn. R. Crim. P. 35, A

dvisory Commis sion Comments.
In this instance, the judgme nt was final at the time the order of correction was entered. Furthermore, the defendant ha d been transfer

red to the Depar

tment o f Correction. The May 25, 1990, order amending the judgment is therefore null and void. In co nsequence, the d efendant is entitled to the 244 day

s' jail credit. T

he judgment of the

trial court denying relief is, therefore, reversed.

___________________________________ GARY R. WADE, PRESIDING JUDGE