IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On Briefs September 21, 2000

STATE OF TENNESSEE v. DEMETRIUS LEVAR 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 appeals

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 the case to a juvenile court, committed plain error for which relief should

be granted. Upon finding that the criminal court had no jurisdiction to retain the case, the case is

remanded to the criminal court to modify the sentencing order by remanding to the juvenile court.

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

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and DAVID R. FARMER, J., joined.

Mark A. Mesler, Memphis, For Appellant, Demetrius Levar 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 filed in juvenile court against Demetrius Levar

McNeil, defendant/ appellant, to find him delinquent. The petition alleged that on May 25, 1998,

Defendant committed aggravated sexual battery against four named minors. Following a hearing

in the Shelby County 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 juvenile court confirmed the findings and recommendations of the referee. On December 22,

1998, Cherri Hatton, mother of Defendant, filed a notice of appeal to the Criminal Court of Shelby

County. Defendant filed a request for a rehearing before the judge in juvenile court; however, an
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order dismissing the rehearing was entered on December 23, 1998, stating that Defendant requested

that the court dismiss the rehearing as he wished to appeal the original ruling.

In February of 1999, a jury trial was held in Shelby County Criminal Court, and the

Defendant was found guilty of three of the four charged counts of aggravated sexual battery. On

March 4, 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 March 4, 1999, should be

corrected to show that the case was remanded to juvenile court for enforcement of the order rendered

by the criminal court. On November 12, 1999, Defendant filed a petition to modify the order of

March 4, 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 representative of the department testified that he was not in favor of home

placement. A hearing was held on December 10, 1999 on Defendant’s motion to correct, and an

order denying the motion was entered on the same date, stating in pertinent part:

On December 10, 1999, a hearing was had on the instant motion,

which was denied. Appellant alleges that this Court’s commitment

order, styled Findings and Recommendations, entered May 26, 1999,

contains a clerical error which should be corrected. Tenn. R. Crim.

P. 36 states as follows:

Clerical mistakes in judgments, orders, or other parts

of the record 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 appellant 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 by

appellant, who seeks now to attack the ruling collaterally by asserting

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 criminal court... shall remand the case to the juvenile court for

enforcement of the judgment rendered by the criminal court...," Tenn.

Code Ann. § 37-1-137(a)(1)(B) states in pertinent part that 
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If a juvenile offender is tried and adjudicated

delinquent in juvenile court for the offense of

...aggravated sexual battery... the commitment may

be for a determinate period of time but in no event

shall the length of commitment be greater than the

sentence for the adult conviction of the same crime,

nor shall such commitment extend past the offender’s

nineteenth birthday. (Emphasis added)

Section (g) (3) of that statute further states that: 

In the event the juvenile offender is a person

described in subdivision (a)(1)(B) and is given a

determinate commitment, and the commissioner or the

commissioner’s designee is of the opinion that the

juvenile offender is a fit subject for discharge, the

commissioner or the commissioner’s designee shall

request a hearing before the judge of the juvenile

court in which the original commitment occurred.

The request shall state the reasons for recommending

the discharge and shall make specific

recommendations as to where the child will be placed.

A copy of the request for a hearing shall be supplied

to the district attorney general. If, on review of the

record, the court is of the opinion that the request is

well taken and the district attorney has no objection,

the judge may order the placement without a hearing.

Otherwise the court shall schedule a hearing within

fifteen (15) days of the receipt of the request for

hearing. At the hearing, the department, the juvenile

offender and the state shall be given an opportunity to

be heard in support of or in opposition to the proposed

discharge and all of the parties may subpoena

witnesses to testify on any issue raised by the

proposed discharge. The court may make such orders

pertaining to the continued commitment or discharge

as the court determines are justified under the proof

produced at the hearing. (Emphasis added). 

This Court feels that since this Court heard the facts as brought out

during the jury trial, this trial was a de novo appeal from juvenile

court, and this Court was the committing court, that although juvenile

court may enforce the judgment by transporting appellant to the
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Department of Children’s Services, this Court is the proper forum for

deciding whether or not any change in the appellant’s placement

should be warranted. To hold otherwise would be to allow a judge

unfamiliar with the facts of appellant’s offense to decide appellant’s

plan of rehabilitation, which would not be in the best interests of the

child. This Court entered its commitment order with that purpose in

mind. If the order had been appealed, and an appellate court had

decided that the above statutes mandated a remand to juvenile court,

to have a different judge not familiar with the facts determine as to

whether or not a determinate commitment was warranted, this Court

would have gladly relinquished jurisdiction. However, that order was

not appealed, and this Court’s order should not now be subject to

collateral attack under the guise of correcting a "clerical error." This

Court felt it was in the best interest of the child, as well as in

accordance with and in the spirit of the above statutes, to enter the

order it did, and although subject to appellate review if it had been

appealed, the order does not contain any clerical 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 the trial court erred by denying the appellant’s motion to

correct error in judgment pursuant 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 case

to juvenile court for enforcement of the judgment rendered by the

jury. 

In his brief Defendant concedes that Rule 36 is intended only to grant trial courts limited

power over cases that have been disposed of to correct clerical mistakes in judgment and other errors

in the record arising from an over sight or omission. See State ve. Pendergrass, 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 argues that his present counsel was hired 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 court was intentional. Defendant states in his brief that in retrospect, it is clear

from the order denying his motion, that the trial court intentionally did not remand the case to

juvenile court. Defendant requests that if this Court finds that the Rule 36 motion was an improper

means by which to bring this issue to this Court’s attention, that this Court use its discretion 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)(Supp. 1999), but merely contends that Rule 36 is
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inapplicable, because defendant is not seeking to correct a clerical error 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 overruling of a motion

for new trial, and thereafter, a trial 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. Crim. App., , Nov. 15,

1995). To insure the stability of criminal case judgments, they can not be changed unless such

change is made to correct illegal sentencing or to correct 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 case must show

that the judgment entered omitted a portion of the judgment of the

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. In the absence of these

supporting facts, a judgment may not be amended under the clerical

error rule after it has become final.

Id. 

The trial judge correctly ruled that there is no clerical error, because, as he made very clear

in his order overruling appellant’s Rule 36 motion, 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 here. We must bear in mind that we are dealing with a juvenile, and quite

appropriately the legislature has declared its intention in dealing with juveniles that stray “outside

the law.” T.C.A. § 37-1-101 (1996) provides in part:

37-1-101. Purpose - Jurisdiction. - (a) This part shall be construed

to effectuate the following public purposes:

(1) Provide for the care, protection, and wholesome moral, mental

and physical development of children coming within its provisions;

(2) Consistent with the protection of the public interest, remove from

children committing delinquent acts that taint of criminality and the

consequences of criminal behavior and substitute therefor a program

of treatment, training and rehabilitation;

(3) Achieve the foregoing purposes in a family environment

whenever possible, separating the child from such child’s parents
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only when necessary for such child’s welfare or in the interest of

public safety;

(4) Provide a simple judicial procedure through which this part is

executed and enforced and in which the parties are assured a fair

hearing and their constitutional and other legal rights recognized and

enforced; 

* * *

Appeals from delinquency proceedings in juvenile court are to the criminal court for a trial

de novo. T.C.A. § 37-1-159 (Supp. 1999). The statute further provides:

37-1-159. Appeals. -

* * *

(b) An appeal does not suspend the order of the juvenile court, nor

does it release the 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 circuit court

may make the same temporary disposition of the child as is vested in

juvenile courts; provided, that until the criminal court or circuit court

has entered an order for temporary disposition, the order of the

juvenile court shall remain in effect.

(c) When an appeal has been perfected, the juvenile court shall cause

the entire record in the case, including the juvenile court’s findings

and written reports from probation officers, professional court

employees or professional consultants, to be taken forthwith to the

criminal court or circuit court whose duty it is, either in term or in

vacation, to set the case for an early hearing. When an appeal is taken

from a juvenile court’s decision that involves the removal of a child

or children from the custody of their natural and/or legal parents or

guardian or from the department of children’s services, or when the

decision appealed involves the deprivation of a child’s liberty 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 circuit

court shall remand the case to the juvenile court for enforcement

of the judgment rendered 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). 
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* * *

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

be afforded a right to a jury trial in the criminal 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 clearly provides that the appeal did 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 court has

specifically retained jurisdiction 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. 

Accordingly, the case is remanded to the trial court for an amendment of its March 4, 1999

judgment to remand the case 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.FRANKCRAWFORD,PRESIDINGJUDGE,W.S.