State of Tennessee v. Michael L. Calandros ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 12, 2005
STATE OF TENNESSEE v. MICHAEL L. CALANDROS
Direct Appeal from the Criminal Court for Sullivan County
No. S41,624 Phyllis H. Miller, Judge
No. E2004-02382-CCA-R3-CD - Filed June 23, 2005
The defendant appeals the trial court’s denial of pretrial jail credits. We conclude that Tennessee
Rule of Appellate Procedure 3 does not provide an appeal as of right from the trial court’s action.
Moreover, because the sentence is neither illegal nor void, the appeal cannot be treated as a writ of
certiorari. Therefore, because this matter is not properly before us, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ROBERT W. WEDEMEYER, JJ., joined.
Michael L. Calandros, Whiteville, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
This appeal arises from the trial court’s denial of the defendant’s “Petition for Pretrial Credits
and/o[r] Petition for Writ of Error.” For clarity’s sake, we will set out a summary of the history of
this matter. The defendant was originally convicted of a violation of a habitual traffic offender order
(Case #S40908). After failing to appear at the sentencing hearing on that matter, the defendant was
indicted by the Sullivan County Grand Jury for failure to appear (Case # S41624), on July 22, 1998.
On December 15, 2000, the defendant pled guilty to failure to appear and received a sentence of six
years as a Range III, persistent offender, which was suspended to supervised probation after the
service of the first 120 days, which were to be served day-for-day in jail. The sentence for failure
to appear was ordered consecutively to the previous sentence of two years in Case #S40908.1
On August 7, 2002, a probation violation warrant was issued, alleging a new law violation
and a violation of Rule #10 (“[a]ssaultive, abusive, threatening, or intimidating behavior…”).
Thereafter, on January 22, 2004, the defendant’s probation was revoked, and his original six-year
sentence in Case #S41624 was reinstated. At that time, the defendant was given credit for 120 days
initially served, as well as forty days served between his arrest for the probation violation and the
actual revocation.2
On May 14, 2004, the defendant filed a request for jail credits for time served from
September 21, 2000, to August 29, 2001. Ten days later, the defendant filed a pro se “Petition for
Reduction or/and Modification of Sentence,” which was summarily denied by the trial court. On
July 26, 2004, the defendant filed a pro se “Petition for Pretrial Credits and/o[r] Petition for Writ of
Error,” requesting pretrial credits from September 21, 2000 to May 1, 2001. In response, the State
filed a motion to dismiss the petition contending that: (1) the defendant pled guilty to failure to
appear on December 15, 2000, and received no pretrial jail credit on that judgment because all credit
was applied to Case #S40908; and (2) any request for jail credit should be addressed to the Board
of Probation and Parole, the Department of Correction, or the Sullivan County Jail.
On September 7, 2004, the trial court held a hearing on the defendant’s petition. The court
initially noted that the only credit originally placed toward Case # S41624 was for the initial 120
days served, because the remainder of time served was applied to the previous sentence in Case
#S40908. The trial court further indicated that, after he violated his probation, the defendant
received credit for the forty days served between his arrest on the probation violation and the date
his probation was revoked. Therefore, the total of all credit received in Case # S42624 was properly
calculated at 160 days.
In dismissing the defendant’s petition, the trial court concluded that application for any
additional credits sought by the defendant should be directed to the jail, and any denied post-
conviction credits appealed through the Tennessee Administrative Procedures Act. The trial court
further noted that it would contact Robert Henshaw, a probation and parole manager, to request a
review of the defendant’s sentence structure and time calculations.
After the trial court dismissed the petition, Henshaw sent letters to both the trial court and
the defendant, confirming the trial court’s finding that neither the defendant’s sentence structure nor
his time calculations contained any irregularities. Specifically, Henshaw stated in his letter to the
defendant:
1
The record reflects that the defendant was granted determinate release on Case #S40908 on May 1, 2001,
which is when his 120-day term for Case #S41624 began.
2
The revocation order reflects that the defendant was arrested on December 12, 2003, and received credit for
time served from that date until his revocation on January 22, 2004. W e note that the length of time between the issuance
of the arrest warrant and its execution is explained by the fact that the defendant was incarcerated in the Talladega
County (Alabama) Jail at the time of his arrest.
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My review of TOMIS, court records, TBOPP records, and the pleadings you filed did
not turn up anything wrong with your sentence structure or time calculations. It
appears that you are asking for pre-trial jail credit in S41,624 from 9/21/00 to 5/1/01;
S41,624 is consecutive to case S40,90[8], a two (2) year Violation HTO conviction.
During the time 9/21/00 to 5/1/01, you were serving your time in case S40,908 and
you were granted Determinate Release probation in that case on May 1, 2001. At that
point, your time (the 120 days) started in S41,624. You cannot receive the same time
on different cases if those cases are consecutive to each other.
On appeal, the defendant contends that the trial court erred in finding that he had no right to
“mandatory” pretrial jail credits.
Analysis
We initially note that no appeal as of right lies from the trial court’s dismissal of the
defendant’s petition. Tennessee Rule of Appellate Procedure 3 states that a defendant can appeal
as of right “from any judgment of conviction . . . from an order denying or revoking probation, and
from a final judgment in a criminal contempt, habeas corpus, extradition, or post-conviction
proceeding.” Tenn. R. App. P. 3(b). Therefore, the trial court’s denial of the defendant’s petition
for pretrial credits is not included in the actions from which an appeal as of right may be taken. See
State v. Greg Smith, No. E2003-01092-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 145 (Tenn.
Crim. App., at Knoxville, Feb. 18, 2004).
Alternatively, in rare circumstances, when a Rule 3 appeal is not available to a defendant, this
court may treat an appeal as a petition for writ of certiorari, now codified at Tennessee Code
Annotated section 27-8-101. See Cox v. State, 53 S.W.3d 287, 294 (Tenn. Crim. App. 2001). This
court has previously held, however, that the writ of certiorari is “limited” and that “appeals via
certiorari should rarely be granted to review motions that assert sentencing infirmities which do not
rise to the level of illegality or voidness.” Cox, 53 S.W.3d at 294. Upon review of the record, we
conclude that the sentence in this case is neither illegal nor void; therefore, this avenue of appeal is
also unavailable to the defendant.
Conclusion
Based upon the foregoing, the appeal is dismissed.
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JOHN EVERETT WILLIAMS, JUDGE
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