### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On Briefs Septem

ber 21, 2000
STATE OF TEN

NESSEE v. DEM

ETRIUS LEVA

R MCNEIL
A Direct Appeal from the Criminal Court for Shelby County No. JV-00063 The Honorable Chris Craft, Judge

No. W2000-00276-CCA-R3-CD - Filed November 8, 2000

Juvenile convicted in criminal court in de novo trial of appeal from juvenile court app eals the criminal court order denying his motion pursuant to Tenn.R.Crim.P. 36 to correct a clerical error. Juvenile asserts that although the criminal court ruled that there was no clerical error, the criminal court, in failing to remand t he case to a juvenile court,

committed plain er

ror for which re

lief should be granted. Upon finding that the c riminal court had n o jurisdiction to re

tain the case, the

case is remanded to the criminal court to modify the sentencing or der by remanding

to the juvenile cou

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

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined.
Mark A. Mesler, M

emphis, For Appella

nt, Demetrius Lev

ar McNeil
Paul G. Summers, Attorney General & Reporter Kim R. Helper, Assistant Attorney General, For Appellee, State of Tennessee

OPINION

On September 28, 1998 , a petition was fil ed in ju venile courtagainst Demetrius Levar McNeil, defendant/ appellant, to find him delinquent. The petition alleged that on May 25, 1998, Defendant

committed aggravated sexual battery aga ins t four name d minors. Following a hearing in the Shelby Count

y Juvenile Court, the referee sustained the petition and found Defendant delinquent. The referee recommended that Defendant be placed under the care and supervision of the Youth Services Bureau subject to further orders of the juvenile court. On December 10, 1998, the juv enile court confirmed the findings and recommendations of the referee. On Dec em ber 22 , 1998, Cherri Hatton, mother of Defen dant, filed a notic

e of appeal to

the Criminal Court of Shelby Cou nty. Defendant filed a request for a rehearing before the j udge in ju venile court; however, an-2-

order dismissing the rehearing was entered on December 23, 1998, stating that Defendant requested that the co urt dismi ss the rehea ring as he wis hed to appea l the origin al ruling.

In February

of 1999, a jury

trial was held in She

lb y Cou nty Criminal Court, and the Defendant

was found guilty of three of the four ch arged counts of aggravated sexual battery. On March4, 1999, a

sentencing hearing was held and an order entered pursuant to T.C.A. § 37-1-137(c) committing Defendant to the Department of Children’s Services until February 13, 2002, Defendant’s nineteenth birthday. On May 18, 1999, Defendant

filed a petition for suspension of the remainder

of his sentence which was denied. On August 4, 1999, Defendant filed a motion to correct
an error in judgment pursuant to Rule 36 of

the Tennessee Rules of Criminal Procedure. Defendant averred that pursuant to § 37 -1-159 (c) (Supp . 1999), the order entered Ma

rch 4, 1999, should be corrected to show that the case was remanded to juvenile court for enforcement of the order rende red by the criminal cour

t. On November 12, 1999, Defe ndant filed a petition to modify the order of March4, 1999, to provide for home placement and supervision by the Department of Human Services. The record

reflects that

a hearing was held on that motion, and the motion was withdrawn after testimony from a rep

r esentative of the

department testif

ied that he was not

in favor of home placement. A heari ng w as held on December 10, 1999 on Defendant’s motion to correct, and an order deny

ing the motion was

entered on the sa

me date, stating

in pertinent part:

On Decem ber 10, 1999, a hearing was had on the instant motion, which was denied. Appe llant alleg es that this Court’s commitment order, styled Findings and Recommendations, entered May 26, 1999, contains a clericalerror which shou ld be corrected

. Tenn. R. Crim. P. 36 states as follo

ws:
Clerical mistakes in

judgments, orde

rs, or other parts of the re cord and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any , as the court orders.

This Court’s order committing ap pellant to the Department of Children’s Services was not a "clerical error" which should be corrected by this court. The order itself was not appealed b y appellant, who seeks now to attack theruling collaterally by asse rting that it contains a clerical error which can be corrected at any time.
Although Tenn. Code Ann. § 37-1-159 ( c) states in part that "the cri mina l court... shall remand the case to the juvenile court for enforcement

of the judgment rendered by the criminal court...," Tenn. Code Ann. § 37-1-1 37(a)(1)(B) states in pertinen

t part that-3- If a juvenile offen

der is tried and adjudicated delinquen t

in juvenile court for the offense of ...aggravated

sexual battery... the commitment may be fora determinate period of time but in no eve n t shallthe length of commitment be greater than the sentence for the adult convi cti on of the same crime,
nor shall such commitment extend past the offender’s nineteenth birthday. (Emphasis added)
Section (g) (3)

of that statute fur

ther states that:

In the event the juve nile offender is a person described in subdivi sion (a)(1)(B ) and is given a deter minate commit

ment, and the commissioner or the commissioner’s designee is of the opinion that th e juvenile offender is a fi

t subject for dis

ch arge, the commissioner

or the commissioner’s de

signee shall request a hearing befo re the judge of the j uvenile

c ourt in which the original c ommitment occurr

e d

. The request shall

state the reasons for recommending the discharge and

shall m ake specifi c recommendations as to where the child will be placed. A copy of the reques t fo r a hearing shall be supplied to the distri ct att orney general. If , on review of the record, the court is of the op inion that the requ est is well taken and

the d istrict attorney has no objection, the judge may order the placement without a hearing. Otherwise

the court shall

sc hedule a hearin

g within fifteen (15) days of the receipt of the r eque st for hearing. At the hearing,

the department, t

he juvenile offender and the state shall be given an opportunity t

o be heard in

support of or in opp

osition to the proposed discharge and all of the par ti es may subpoena witnesses to testify on a ny iss ue raised by the proposeddischarge. The court may make such orders pertaining to the cont inued comm itment or d ischarge
as the court determines are j ustifi ed under the proof produced at the hearing. (Emphasis added).

This Court feels that since thi s Court heard the facts as brought out during the jury tr

ial, this trial was a de novo appeal from juve nile court, and this Court was the committing court, that although juvenile court may enforce the judgment by transporting appel lant to the-4- Department

of Children’s Serv

ices, thisCourtis the proper forum for d eciding whether or not any change in the appellant’s place men t should be warranted. To hold otherwise would be t o allo w a judge unfamiliar

with the facts of a

ppellant’s offe

nse to decide appellant’s plan of rehabilitation, which would not be in the best interests of the child. This Court entere

d its commitment orde

r with that purpose in mi nd. If the order had been appealed, and an appellate court had decided that the above statute

s mandated a rema

nd to juvenile cour

t, to have a different judge not familia

r with the facts de

termine as to whether or not a determina

te commitment was warranted, this Court would have gladly relinquished jurisdiction. However, that order was notapp ealed, an d this Court’s order should not now be sub

ject to collateral attack under the guise of correcting a "clerical error." This Court fe lt it was in the best in terest of the chil

d, as well a

s i n accordance

with and in the spirit of the above statutes, to enter the order i t did, and although subject to appellate review if it had been appealed, the ord er do es n ot c ont ain any c le rical errors, and is not subject to Rule 36.
It is from this order that Defendant appeals raising one issue as stated in his brief:

Whether th e trial court erred by

denying th

e appellant’s moti

on to correct error in judgment pursua

nt to Rule 36 of the Tennessee Rules of Criminal Procedure, where T.C.A. § 37-1-159 ( c) mandates that, following a finding of

delinquency, the criminal court remand a c

ase to juvenile court fo

r enforcement of

the judgment rendered by the jury.

In his brief Defend

ant concedes tha

t Rule 36 is int ended only to grant trial courts limited power over cases that have been disposed of to correct clerical mistakes in judgment and other er rors in the record arising from an over sight or omission. See State ve. Pend ergrass , 937 S.W.2d 834, 837 (Tenn. 1996). However, Defendant submits that his Rule 36 motion was filed in a good faith effort to correct the trial court’s error. Defendant arg ues that his prese

nt counsel was hir

ed in August of 1999, and at the time of the motion was unaware of whether the failure of the trial court to remand the case to juvenile c

ourt was intentiona

l. Defendant sta

tes in his brief tha

t in retrospect, it

is clear from the order deny

ing his motion, that

the tria l c ourt intentionally

did not remand the c

ase to juvenile court. Defenda

nt requests that if

this Court finds that t

he Rule 36 motion was an improper
means by which to

bring this issue to this Court ’s attention, that t

his Court use its disc

retion to review the instant case pursuant to Tenn.R.App.P. 13 (b) and Tenn.R.Crim.P. 52.

The state makes no

response to appellant’s assertion that the criminal court did not comply with the mandate of T.C.A. § 37-1-159(c)(Su pp. 1999), but mere

ly contends t

hat Rule 36 i s-5-

inapplicable, because defendant is not seeking to correct a clerical er ror but instead seeks to make a substantive change in the judgment order.

“A judgment in a criminal case becomes final 30 days after its entry or over ruling of a motion for new trial, and the

reafter, a tria

l court has no jurisdiction to modify it.” State v. Miller, No. 02C01-9708-CC-00300, 1998 WL 902592 *2 , (Tenn. Crim. App. Dec. 29, 1998); (citing State v. Charles Alvin Haney , No. 839 (Tenn. Crim. App., March 29, 1989) (citations omitted) ); see also State v. Thomas, No. 03C01-9504-CR-00109, 1995 WL 676396 (Tenn. Cr im. App., , Nov. 15, 1995). To insure the stability of criminal case judg men ts, the y can not be changed unless such change is made to correct illegal sentencing or to correc t clerical errors pursuant

to Rule 36 of the Tennessee Rules of Criminal Procedure. State v. Thomas , at *1.

In making changes for clerical error, the record in the ca

se must show that the judgment entered omitted a portion of the judgment of t he court or that the judgment

was erroneously entered. The most reliable indicator that

clerical error was made is the transcript of the hearing
or other papers filed in connection with the proceedings which show the judgment was not correctly entered. I n the absence of

th ese supporting facts, a

judgment may not be amended under the clerical error rule afte

r it has become fin

al.

Id. The trial judge correctly ruled that there is no clerical error, because, as he made very clear in his order

overruling app

ellant’s Rule 36 mot

ion, he intended to

retain jurisdiction “for deciding whether or not any change in the appellant’s placement should be warranted.” However, our inquiry should not end her e . We must bear in mind t hat we are deal

ing with a juvenile

, and quite appropriately

the legislature

has declared its

intention in dealing

withjuveniles that stray “outside the law.” T.C.A. § 37-1-101 (1996) p rovides in part:

37-1-101. Purpose - Jurisdic tion. - (a) This

part shall be construed to effectuate th

e following publi

c purposes: (1) Pro vide for the care, protection, and wholesome moral, mental and physica

l development of c

hildren coming w

ithin its provisions;
(2) Consistent with the protection of the public interest, remove from children committing delinquent acts that taint of criminalit

y and the consequences of

criminal behavior and

substitute therefor a program of treatment, training and rehabilitation;
(3) Achieve the foregoing purposes in a family e nvironment whenever possible, separating the chi ld f rom such child’s pa

rents-6- only when necessary for such child’s welfare or in the interest of pub lic saf ety;
(4 ) Provide a simple jud icial procedure

through which thi

s part i s executed and enforced and i n which the partie s are assured a f

air hearing and their constitutional and other legal rights recognized and enforced;

* * *
Appeals from delinquency proceedings in

juvenile court are to the criminalcourt for a trial de novo . T.C.A. § 37-1-159 (Supp. 19 99). The statute f

urther provides:
37-1-159. Appeals. -

* * * (b) An appeal does no

t suspend th

e order of the juvenile court, nor does it releas e th e child from the custody of that court or of that person, institution or agency to whose care the child has been committed. Pending the hearing, the criminal court or cir cuit court may make the same temporary disposition of the child as is veste

d in juvenile courts; provided, that

until the criminal court or circuit court has entere d an order for temporary disposition, the order of the juvenile court sha

ll remain in effe

ct.
(c) When an appeal has been perfected, the juvenile court

shall cause the entire record i

n the case, includ

ing the juvenile c

ourt’s findin gs and written reports f

rom probation off

ic ers, professional court employees or professional consultants, to be taken forthwith to the criminal court or circuit c ourt whose duty

it is, either in term

o r in vacation, to setthe case

for an early hearing. When an appeal is taken from a juvenile court’s decision that involves theremoval of a child
or children from th e custody of their natural and/or legal parents or guardian or from the department of children’s services, or when the decision appealed involve s the deprivation o

f a child’s li

ber ty as a result of a finding that such

child engaged

in criminal activity, such hearing shall be held within forty-five (45) days of receipt of the findings and reports. In its order, the criminal court or cir cuit court shall remand

the case to the juveni

le court for enforc

ement of the judgment re

ndered by

the criminal court or circuit court. Appeals from an order of

the criminal court

or circuit court pursuant to this subsection may be carried to the court of appeals as provided by law. (Emphasis added).-7- * * *

It is apparent from the language of the statute that the legislature

intended that the j uvenile be afforded a rig

ht to a jury tr

ial in the crimin

al court, but that the custodial jurisdiction of the juvenile court should continue. Such an intent is apparent to foster the purposes of the jurisdiction provided for in T.C.A. § 37-1-101 (1996). It is obvious from a fair reading of T.C.A. § 37-1-159 (Supp. 1999) that the legislature intended to provide the juvenile with all due process rights by having the trial

in criminal court.

It quite clea

rly provide

s that the appeal d

id not release

the child from the custody of the juvenile court and that the order of the criminal court “shall remand the case to the juvenile court for enforcement of the judgment.” Under these circumstances, it appears that the failure of the trial court to make such a provision constitutes “plain error.”

As we construe the trial court’s order from which this appeal is taken, the trial co urt has specifically

retained jurisd

ict ion of the enforcement of its judgment. We believe a fair reading of § 37-1-159 (b) and (c) mandates that the trial court, under this statute, has no jurisdiction to act otherwise than to remand to the juvenile court enforcement of its order. The trial court’s retention of jurisdiction by failure to remand is void.

Acco rdi ngly, the case is remanded to the trial court for an

amendment of its March 4, 1999 judgment to remand the cas

e to the juvenile

court for enforcement of the judgment, as required by T.C.A. § 37-1-159 (c)(Supp. 1999). Costs of the appeal are assessed to the State of Tennessee.

__________________________________________ W. F RANK CRAWFORD, PRESIDING JUDGE, W.S

.