Kerry Lovett v. State ( 1999 )

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