### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 21 , 2002 Ses sion
STATE OF TENNESSEE v. JOH N TRAVIS COLLINS, ALIAS
Direct Appeal from the Criminal Court for K nox County No. 55819 Mary Beth Leibowitz, Judge

No. E2001-01301-CCA-R3-CD August 27, 2002

The State challenges the trial court’s jurisdiction to modify sentence more than six yea rs after judgment. Generally

a trial court would not have jurisdict ion to modify a sentenc e more than 120 days afte r judgment becomes final. However, we conclude that

where the defe

ndant wa s never i n the physical

custody of the De

partment of

Correct ion, jurisd

iction to mo dify

sentenc e remain

ed in the trial court. We

affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and N ORMA M C G EE O GLE , JJ., joined.

Paul G. Summers, Attorney Gene ral an d Re porter; M ark A. F ulks, Assis tant Attor

ney Genera l; Randall Eugene Nichols, District Attorney General; and P a tricia Cr istil and Ste

ven C. Ga

rrett, Assistant District Attorneys Gener al, for the appellant, State of Tennessee.

James A.H. Bell (at trial), Steven Oberman (at trial) , and Tommy K. Hindman (on appeal ), Knoxville, Tennesse e, for the appell ee, John Tr avis Collin s, Alias.

OPINION

In February

of 1995, the defendant, John Travis Collins, pled guilty to vehicular homicide,
a Class C fel ony . Pursuan t to a pl ea agreement, he wa s sentenced to five y ears with all but nine months to be served on probation. Pursuant to Tennessee Code Annotated section 40-35-314, the trial court ordered the defendant to serve the nine months conf inement in the Knox County Penal Farm. I n addition , the def

endant w as order

ed to pay $50,000.0 0 restitut

ion to th e v ic ti m’ s f am il y, and his driving privileges were suspended f or a period

of nine yea

r s. In March of 2001, the defendant filed a motion for release from probation and modification of sentenc e, requesting the trial court to modify

the judg ment and r

esto re his d

riving privileges. The trial court g ranted the defendant’s motion and restored his driving privileges. The State filed this timely appeal contending1 The defe ndant had appar entl y deve loped some health proble ms whi ch pre cipi tat ed hi s nee d to dr ive on occ asion in ord er to ge t med ical treatm ent.
-2- that the trial court wa s without jurisdict ion to modif y itsjudgmen

t more tha

n six y ears af

ter it became final.

The defenda

nt’s conviction for

vehicula r homicide

result ed from an automobile accident wh ich was cau sed by

the defe ndant’s v ehicle s triking

the rea r of the victim’s ve

hicle. Th e victim died as a result of the accident, and a blood alcohol test re vealed that the defendant’s blood alcohol content was .25 at the time of the accident. A t the hea ring on t he defe ndant’s m

otion for releas e from probatio n and res toration o f driving privileg es, the defe

ndant ass erted th at he had fulfille d his restitu tio n obligation, refrained from driving for seven yea

rs, completed DUI driving school, and underg one materi al chang es in his he alth and m arital st atus. 1 At the time of the hearing, the defendant was employed, dr

ug free, and married with a nine teen-month-old baby. Th e victim’ s family attorney also a

ppeared at the hearing

and informed

the court that the family w as aware of the defendant’s change in circumstances. He f urther stated that

the defendant had paid restitution ahead of schedule, and the victim’s family had no objection to restoration of t he defen dant’s driving privileg es.
On appeal, the State

argue s that the t

rial cou rt d id not have jurisdiction to modify the defenda nt’ s senten ce more than 120 day s after the judgment became final a nd that the nine-yea

r revocation was part of the plea ag reemen t which should not be altered. We disagree. While we ackno wledge that the trial cou rt normally does not have jurisdiction or a uthority to chang e the senten ce in an y manner onc e the judgment becomes final, Tennessee Code Annotated section 40-35- 319(b), we conc lude that

this case falls within the exception provided in Tennessee Code Annotated section 40-35-212. “Unless the defendant rece ives a sentence in the department [of correction], the [trial] court sha

ll retain full jurisdiction over the manner of thedefendant’s sentence service.” Tenn. Code Ann. § 40-35-2 12(c). F urthermo re, subsection (d)provides : N otw ithstanding the provi sions of su bsection (c), the court sha

ll retain full jurisdiction over a defendant sentenced to the depa rtment during the time the defendant is being housed in a local jai l or workhouse awaiting transfer to the departm ent. Such juris diction sh all c ontinue until such time as the

defenda nt is actually transfe rred to th e phy sical cu stody

of the de partmen t. Id. at (d).

In the instant ca se, the de

fendant was sente

nced to five yea rs in the Tennessee Department of Corre ction. Ho wever, withregar d to the manner of service, the trial court order ed the sentence to be served in split confinement with nine months confinement at the Knox County Penal Farm and four years a nd three months on supervised probation. The judgment reflects that the trial court relied
on Tennessee Code Annotated sect ion 40 -35-314(d), which provides that “if the sentence is eig ht (8) ye ars or le ss and com bined wit h periodic o r split confinement not to exceed one (1) year, the court shall des ignate

the plac e of conf

inement a s a local

jail or workh ouse.” We

notethat subsection (c) additionally provides that “the [trial] court shall retain full jurisdiction over the defendant during-3-

the term of such sentence and may reduce or modify

the sentence or may

place the defe ndan t on probation supervision where otherwise eligible.” Te nn. Code Ann. § 40-35-314(c).

Becau se the instant defendant was sentenced to less than one y ear of continuous confinement withthe balance of his sentence to be served on probation, he was properly orde red to serve the term of confinement in the local jail. In addition, it is clear from the record that the defendant was ne ver transferred

to the physical custody

of the Tennessee De partment of Correction. As such, the trial court retained full jurisdiction over the defendant. Tenn. Code Ann. §§ 40-35-212(c ); 40-35-314(a), (c). Thi s issue is w ithout mer it. Accordingly , the judgment of the trial court is affirmed.

_______________________________ JOHN EVERE

TT WILLI AMS, JUDGE