### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

PAUL TOBIAS D AVIS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2001-A-483 Steve R. Dozier, Judge

No. M2004-02378-CCA-R3-CO - Filed F ebruary 24, 2005

This matter is before the Court upon the State’s motion to affirm the judgment of the trialcourt by memorandum

opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner, Paul Tobias Davis, has appealed the trial court’s order summar ily dismissing his “Petition for Pretri a l Jail Credit A

nd/or Petition for a Writ of Certiorari.” In that petition, the petitioner cha llenges the calculation

of his sentenc ing cre dits during his incar ceratio n in the Da

vidson Coun

ty Jail from July 8, 2001, until

April 17, 2 002. Upon

a revie w of the r ecord in this case we are persuaded that the trial court was correct in s um marily dismissing the petition and that this case mee ts the criteria for affirmance pursuant to Rule 20, Rules of the Co urt of Criminal Appeals. Accordingly , the State’s motion is granted and the judgment of the trial court is aff irmed.

Tenn. R. App. P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is Affirme d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and R OBER T W. W EDEMEYER , JJ., joined.
Paul Tobias Davis, Pro Se, Whiteville, Tennessee.

Paul G. Summers, Attorney Gene ral & Reporter; Jennifer L . Bledsoe, Assistant Attorney Genera l; and Victor S. Johnson, District Attorney Genera l, for the appellee, State of Tennessee.

MEMORAN

DUM OP INION Factual Backgr

ound

On April 17, 2002, the petitioner pled guilty to two counts of

aggr avated s exual batte

ry with
anagreed upon sentence of te n (10) yea

rs at one-hundred (100%) perce nt. On Ju ly 14, 2004, the petitioner filed a pro se “Petition f or Pretr ial Jail Cre dit And/or

Petition fo

r a Writ of

Certiora ri” challenging

the calculation

of his sen tencing credits during h is incarc eration

in the Dav

idson Count

y-2-

Jail from July 8, 2001, until Apr il 17, 2002. On July 25, 2004, the trial court entered a n order dismissing the petition for lack of jurisdiction based on the fact that the judgment became f inal on May 17, 2002, and the petitioner did not seek relief in the trial court unt il July 14, 2004. The petitioner filed a notice of appeal on September 16, 2004.

Ini ti al ly, we note that the notice of appeal must be filed with the clerk of the trial court wit hin thirty (30) days a

fter the da te of entry of

the judgment appealed from. See Tenn. R. App. P. 4(a). The notice of appeal herein was filed on September 16, 2004, fifty- three (53) days from entr y of the judgment of the trial court. Notwithstanding, papers filed by an incarcerated pro se litigant will be deemed to be timel

y- filed if t

he pape rs were deliver ed to the a

ppropria te individ

ua l at the correctional facility within the time fixed for filing. See Tenn. R. Crim. P. 49 (c). Shou ld timeline ss become an issue, the burden is on the pro se litigant to establi sh complia

nce with this provision. Id. The petitione

r herei n has not pr

ovided an y pr oof that the paper s were d elivere d to the ap

propria te individual at the correctional facility within the time fixed for filing. However, the petitioner does provide proof that he did not receive the order from the trial court until September 10, 2004. The notice of appeal document is not jurisdictional in criminal cases and the filing of such document may be waived in the interest of justice. See Ten n. R. App. P . 4(a). T his Court f

inds that w aiver is warranted in this case.

Neverth eless, a trial c ourt’s jud gment be comes fin

al thirty (30) day s after i ts entry unless a timely notice of appeal or specified post-trial motion is filed. State v. Moore , 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991). Once the judgment is final, the trial court gener ally loses juri sdiction to amend it. Id. The record in the present case doe s not reflect an appeal by the

petitioner following the entry of the

judgment on April 17, 2002, nor does the petitioner argue tha t such was filed. As determined by

the trial court, the petitioner’s judgment became fina l on May 17, 2002. Thereafter, the trial

court los tjurisdiction to modify the sentence. “The pr oper ave nue by which to address sentenc e redu ction cr

edits is thr

ough the avenue s of the Ad

ministrati ve Proce dures Act, Tenn. Code Ann. § 4-5-101 , et seq,” after th e trial c o urt has lo st jurisdiction and th e petitioner is placed within the custody of the Depa rtment of Correction, an

agency of the state government, James A.Vaughan

v. State , No. 01C01-93080CR-00258, 1994 WL 538 45, at *1 (Tenn. Crim. App. at Nashville, Feb. 24, 1994); see also State v. D avid N. Kuntz , No. 0 1C01- 9101- CR-00 019, 1 991 WL 101857, at

*3 (Tenn. Crim. App. at Nashville, June 14, 1991). There is no evidence that the peti tioner, c urrently in the custody of the Department of Correction, has pursued this avenue of redres s. Furthermore, any judicial revie w through the Administrative Procedures Act must be in the Chancery Court of Davidson County. Tenn. Cod e Ann. § 4- 5-322(b) (1); Brigham v. La ck , 7 55 S.W.2d 469, 471 (Tenn. Crim. App. 1988). Accordingly, the Davidson County CriminalCourt did not have jurisdiction over this matter and correctly dismissed it.
Rule 20, Rul es of the

Court of Cr

iminal App eals pro vides inte r alia:

The Court, with

the conc urrenc e of all ju

dges pa rtic ipating in the case, when an opinion would have no precedential value, may aff irm the judgment or action of the-3-

trial cou rt by memorandum opinion

rather than by formal op inion, whe

n: The judgment is rendered or the action taken in a pr oc eedin g before the tr ial j udge without a jury , and suc h judgme nt or act ion is not a

determination of guilt, and the evidence does not preponderate ag ainst the finding of the trial judge . . . .

We determine that this case meets the criteria of theabove-quoted rule and therefore w e grant the State ’s motion f

iled unde r Rule 20 a

nd we af firm the j udgmen

t of the tr ial cour t.

___________________________________ JERRY L. SMITH, JUDGE