Kerry Lovett v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 27, 1999
• Docket: 01C01-9907-CC-00249
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED KERRY D. LOVETT, ) October 27, 1999 ) C.C.A. NO. 01C01-9907-CC-00249 Appellant, ) (No. 12030-12254 Below) Cecil Crowson, Jr. ) Appellate Court Clerk VS. ) CHEATHAM COUNTY ) The Hon. Robert E. Burch STATE OF TENNESSEE, ) ) (Dismissal of Petition for Jail Credits) Appellee. ) ) AFFIRMED PURSUANT TO RULE 20

ORDER

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. The appellant opposes the motion. Upon reviewing the record,

the appellant’s brief, the state’s motion, and the appellant’s reply, we find that it is an

appropriate matter for affirmance under Rule 20.

From the record, it appears that the appellant filed a motion to receive jail

credits on January 21, 1999. Thereafter, on June 15, 1999, the trial court dismissed the

motion for lack of jurisdiction. Later, on August 18, 1999, the trial court entered an order

giving the appellant credit for time served in jail prior to and after the judgments were

entered. On appeal, the petitioner contends that he is entitled to “two for one” credits and

“behavioral credits.” See T.C.A. §§ 41-2-123 and 41-21-236(e).

As a general rule, once a prisoner is in the custody of the Tennessee

Department of Correction, the proper avenue by which to address sentence reduction

credits, including pre-trial jail credits, is through the Administrative Procedures Act. See

T.C.A. § 4-5-101, et seq. see also, Russell Kirby v. State, No. 03C01-9309-CR-00303,

(Tenn. Crim. App., at Knoxville, Aug. 22, 1994). This Court has recognized that where both

the state and the petitioner are in agreement that the petitioner is entitled to the credits, the

trial court’s order granting the credits does not require reversal. See Matthew P. Finlaw v.

Anderson County Jail, No. 03C01-9212-CR-00448 (Tenn. Crim. App., at Knoxville, Aug.

13, 1993). See also, State v. Henry, 946 S.W.2d 833, 834 (Tenn. Crim. App. 1997) (Held

that where case reversed and remanded, trial court in best position to calculate pre-trial

credits). Under the circumstances of the present case, the appropriate avenue for the

appellant is through the Administrative Procedures Act. See State v. James Alphonso Vaughn, No. 01C01-9308-CR-00258 (Tenn. Crim. App., at Nashville, Feb. 24, 1994).

IT IS, THEREFORE, ORDERED that the state’s motion to affirm the

judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules,

is granted, and the judgment of the trial court is affirmed. It appearing that the

petitioner is indigent, costs of these proceedings are taxed to the state.

_____________________________ JOHN H. PEAY, JUDGE

CONCUR:

_____________________________ JERRY L. SMITH, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE