### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE March 18, 2003 Session STATE OF TENN ESSEE v. JAYE WESLEY MITTS Direct Appeal from the Criminal Court for Cam pbell County No. 10853 E. Shayne Sexton, Judge

No. E2002-00016-CCA-R3-CD September 22, 2003 The State app eals contending the trial court erred in allowing the defe ndant to receive jail credit from an unrelated c harge agai nst the 150 -day mandator

y min imum sente

nce he r eceive d in his ple a to sixth offense D.U.I. A

lso, the State alleges error in the trial court modify ing the defendant’s pay

ment plan for paying

fines and costs to less than the defendant agreed to pay

when the trial court accepted the defendant’s plea agreement. We conclude it was e rror to allow this defe

ndant to r eceive any jail credit toward his man da to ry m inimum of 15 0 day s for his sixth D.U.I . offens e where the cre dit accumulated onan unrelated charge. We fur ther conclude the trialcourt was within its discretion to modify the

payment plan, not the over all fine, upon determining the defendant did not have the ability to pa y. We reverse in part and affirm in part the judgments of the trial court and remand for entry of a corrected judgment consistent with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed in Part;

Affirmed in Part; and Remanded for Entry of Corrected Judgment J OHN E VERE TT W IL LI AMS , J., del ivered the opinion of the court, in which D AVID G. H AYES and T HOM AS T. W OODA LL , JJ., joined. Paul G. Summers, Attorne y Ge neral a nd Report

er; Mark A. Fulks, Assistant

Attorney Genera l; William Paul Phillips, District Attorney General; and Micha el O. Ripley, Assistant

District Attorney General, for the appellant, State of Tennessee. Lee Asbury , Jacksbor

o, Tenne ssee, fo

r the app ellee, Jay

e Wesley Mitts.

OPINION This case is b efore u s on the Sta te’s peti tion for w rit of ce rtiorar i. The Stat

e asser ts that the trial court erred: (1) by

granting pre-trial jail credit and applying time served on an unrelated community

corrections violation to the instant sixth offe nse DUI and associated offenses, and (2)-2-

alterin g a prov ision of the defendant’s plea agreement relating to pay ment of fines and costs after accept ance by the trial court. The record is undisputed as to the facts surrounding the plea in this case. The defendant pled guilty to DUI, sixth offen se; violat ion of the Habitual Motor Veh

icle Off ender Act; felony eva

ding arre s t; and resisting arrest. The recommenda tion accompanying

the plea of guilty

was that the defenda nt be sent enced a s a Rang e II , multiple offender, to an effective three-yea r sentence, a fine of $3000, and loss of drivers license for five yea rs. Al l counts we

re to be s erved c oncurre

nt with eachother and consecutive to the defendant’s prior

convicti ons. The d

efenda nt would re

port to jai l on November 9, 2001, and serve 150 consecutive da ys l ess any

previousjail service and c redits, if an y. The remainder of the sentence would be se rvedon community correc tions, and the total of fines and costs to be paid at $500 per month with t he first payment due 30 days from re

lease from confine ment. After accept ance of

the gu ilty

plea at t he plea hearing, the trial court found the defendant guilty of the offenses as pled and stated it would “affix the recommended p unishment.” The defendant’s co un sel informed the court that on the date set for the defe ndant’s jail report, the defendant would appear and seek credits to be allowed f or the time he was on house a rrest. The arrest on the inst

ant c harges had apparently tr iggered the issuance of

a warrant for violation of community

corrections the defendant was serving on a prior, unrelated conviction. As a result of that violation, the defendant had spent 21 day s in jail and 148 days on house ar rest with work release. On November 9, 2001, the trial court held a hearing pursuant to the defendant’s re quest for credit agains t the 150 da

ys o f mandat

ory jail time in

the instan

t case for the time serve d in jail and on house arrest onthe community corrections violation. The defendant also requested to be allowed to pay $250 per month on fine s and costs in variance with the $5 00 per mont h as provided by the plea agreement. On Decembe r 31, 2001, judgments were entered g ranting credit for time served on the community corrections violation (21 days in jail plus 148 day s on house arrest) and reducing the payment plan to $250 per month. I. First, the State alleges that the trial court erred in gran ting the defenda nt pre-tr ial jail credit aga in st th e ma nda to ry mi ni mu m s ent enc e fo r si xt h of fen se D UI. In this matter, the defenda nt received credit for time served in jail and on house a rrest as incarceration

that was incurre d for a pr

ior sepa rate offense other than the instant DUI and associated offense s. The pe

rtinent pr ovisions of

the statut ory penalty for sixth of

fense D UI isas follow s: Notwithstanding any

other pr ovision of law to the contr

ary , the four

th or subsequent conviction shall be a Class E felony puni shable by a f

ine of not less than three thou sand dollars ($3,000) nor more than fifteen thousand dollars ($15,000) ; b y confinement

for not le ss than one

hundred fifty (150) co nsecutiv e day s, to be served day for day, nor

more than the maximum punishment authorized for the appr opriate1 Tennessee Cod e Anno tated section 41 -2-128(c ) allows second offense DUI offenders a conditi onal right to

work release . The statute is inap plicab le to the d efend ant in the in stant cas e. -3- range of a ClassE felony ; and the c ourt shall prohibit the pers on fro m driv ing a motor veh

icle for a period of five ( 5) y ears. Tenn. Code Ann. § 55-10-403(a)(1). Tennessee Code Annotated section 40-23-101(c) requires that the d efendan t shall receive credit for any time serv ed for a

ny “ convicti on arisin g out o f the original offense for which the defendant was tried.” The statu

tory langua ge explic itly

require s “day

for day ” servic e of a mi nimum o f 150 consecutive days in this ins tan ce. The State’s brief amply illustrated the trial court’s lack of discretion in sentencing under this provis ion. The phrase “ day for day ” exclude s the possi

bility of periodic confinement until a DUI offe nder has served the mandatory minimum. Statev. Gurley , 691 S.W.2d 562, 563-64 (Tenn. Crim. App. 1984). A trial judge may designate a service perc entage for DUI offenders but may

not alter, amend , or decreas e mandatory minimums provided by the DUI statute. State v. Palmer , 902 S .W.2d 3 91, 394 (Tenn. 1985). 1 But see Tenn. Code Ann. § 41-2- 128(c). The require

ments and man dates of Tennessee Code Annotated section 55-10-403( a)(1 ) aside , allowing jail cred it fo r an unrelated offense is plain error. T his Court has consistently held that defenda nts are ent

itled topre-trial jail credit against the sentence only if

the incarceration, claimed as basis for the credits, arises from the of fens e for which the sentence was imposed. State v. Abernathy , 649 S.W.2d 285, 286 (Tenn. Cri m. App. 1983) ; Trigg v. State , 523 S.W.2d 375, 376 (Tenn. Crim. App. 1975). “Doub le-di ppin g” for cre dits from a period of continuous confinement for twoseparate and unrelated charges has been re

jected by this Court, State v. Ca vitt , No. E1999-00304-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 555 (Tenn. Crim. App. July 13, 2000, at Knoxville), and by the court of appea ls, Johnson v. Tennessee Department of Correction , M2001-01581-CCA-R3-CD, 1996 Tenn. App. LEXI S 448 (Tenn. Ct. App. Aug. 7, 1996). The trial court erred in allowing cr edits for an unrelat ed char ge to be used tode cr ea se th e m an da to ry m in im um 15 0 d ays required service on the instant charge. II. The State next argues that the trial court erred in altering a provision of the plea agr eement after the court’s acceptance. After having previously accepted the plea agr

eement which contained the mo nt hl y p ayment of $5 00 per month toward fines and costs, the trial court, at the defenda nt’s request, allowed the defendant to pay at the rate of $250 per month. Tenness ee Rules o f Criminal Procedu re 35(b) , in pertin

ent part , is as foll ows:-4-

(b) Reduction of

Sentence. -- The trial court may reduce a sentence upon application filed within

120 days afte

r the date the sentence is imposed or probation is revoked. No extensionsshall be a

llowed on the time lim

itation. N o other a

ctions sha ll toll the running of this time limitation. A motion for other actions shall toll the running of this time limita

tion. A moti on for reduction of sentenc e under t

h is rulemay be denie d by the tr ial j udge wi thou t a hear ing. At the defendant’s timely

request and over the State’s objection, the trial court allowed the payment of fines and costs to be a mended to $250 per month. The original plea ag reement had stipulate d $500 per

month pay

ments. Ru le 35(b) al l ows modification of a sentence where an a lteration may be pr

oper in the interest s of justice. State v. Hodges , 815 S.W.2d 151, 154 (Tenn. 1991). The case of State v. Hargrove , Nos. 01S01 -9203-CC- 00035; 01S0 1 -9203-CC-00036; 03S01-9203-CR-00026, 1993 Tenn. LEXI S 296 (Tenn. Aug. 9, 1993, at Nashville), limited the scope of Rule 35(b) when alter ation would violate the plea agreement enter ed under Tennessee Criminal Procedure Rule 11(e )(1 ) (c). This has been interpreted as allowing modification in the intere st of justice. See e. g. , State v. McDonal d , 893 S.W.2d 945, 947 (Tenn. Crim. App. 1994). In this matter, the trial court did not alter the amount of fines and costs but merely changed the pay ment plan , as the tr

ial judg e stated , to avoid making the defendant indigent. We conclude that this adjustment was not an abuse of discretion. Conclusion The trial court erred in granting ja il credit for time served on house arrest for a pr ior, unrela t ed offense. The credits bestowed did not arise from the instant off enses. The trial court’s adjustmentof the defendant ’s pay ment plan was not a

n abuse o f discre

tion. The c aseis remanded to the trial court for entry

of judgment in conformance with the original plea agree ment requiring 150 da ys minimum service, but with the court’s modification of the payme nt plan for

fines and costs.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE