The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999
FILED
August 5, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9810-CC-00310
Cecil Crowson, Jr.
)
Appellate Court Clerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. ROY B. MORGAN, JR.
ROBERT M. McKNIGHT, ) JUDGE
)
Appe llant. ) (Habeas Corpus)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
C. MARK DONAHOE PAUL G. SUMMERS
312 East Lafayette Street Attorney General and Reporter
P.O. Box 2004
Jackson, TN 38302-2004 PATRICIA C. KUSSMANN
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
JERRY W OODALL
District Attorney General
SHAUN A. BROWN
Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
In this appeal we determine whether the Defendant’s sentences for two
DUI conviction s expired during the time the s heriff could not incarcerate the
Defendant due to an overcr owde d jail. Th e trial co urt ruled that the Defe ndan t’s
sentences had not expired. We agree and affirm the judgment of the trial court.
On May 7, 1997, the Defendant pleaded guilty to and was convicted of
DUI, second offense and DUI, third offense.1 For these convictions, he received
consecu tive senten ces of ele ven mo nths an d twenty-n ine days in the cou nty
workhouse. He was ordered to serve 150 days in confinement for one of the
convictions, followed by sixty days co nfinem ent for the o ther con viction, with the
balance of his sente nces to be s erved on pro bation . His effective sentence was
thus two years, with 2 10 days to be serv ed in con fineme nt. 2
The Defendant imm ediate ly presented himself to the county sheriff’s office
to begin serving his sentences. He was told that no spac e was availab le for him
to serve his sentences and that he would be notified when to report. In August
of 1998, the Defen dant rec eived no tice from th e sheriff’s off ice that he w as to
report to begin serving his effective 210-day sentence.
On September 3, 1998, the Defendant filed a “Motion for Post-Conviction
Relief and/or W rit of Habe as Cor pus.” He asserted that the notification to report
1
Tenn. Code Ann. §§ 55-10-401, -403.
2
The Defendant was also convicted of and sentenced for other offenses, none of which
is relevant to the issues presented in this appeal.
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to jail came over one year after his sentences became final and stated tha t “[t]o
require the Defendant to serve a sentence after expiration of the sentence is a
violation of the Defendant’s due process rights, violation of the credit for time at
liberty doctrin e and is a violation of the principle o f fundam ental fairne ss.”
The trial court conducted a hearing on the Defendant’s motion, at which
time the pa rties stip ulated to the p ertinent facts as stated herein. At the
conclusion of the hearing, the trial cou rt denied the D efendant re lief from h is
sentences, relying on th e provisions of Tennessee Code Annotated § 55-10-
403(p)(3). From this order, the Defendant now appeals.
In this appeal, the Defendant relies primarily on State v. Walker, 905
S.W.2d 554 (T enn. 1995). The facts presented in Walker were qu ite similar to
those presented in the case at b ar. On August 27, 1990, Defendant Walker was
convicted of DUI and received a jail sentence of eleven months and twenty-nine
days, with all but twen ty days su spend ed. Id. at 555 . He re ported to the s heriff’s
office to begin serving his sentence and was told that no space was available and
that he would b e notified w hen to re port. Id. Almost two years later he received
the notice to re port to jail. Id. He sought relief from his sentence, alleging that
it had exp ired. Id. The trial court denied Walker relief and this Court affirmed,
however, our supreme court granted Walker re lief. Id. The C ourt bas ed its
decision upon a n interpre tation of our statutes, holding that “where persons under
a crimina l sente nce im med iately pr esen t them selves to the a pprop riate
authorities for incarc eration and a re turn ed aw ay the s enten ce in each case shall
begin to run when the judgment of conviction becomes final or the prisoner is
actually incarcerated , whichever is earlier.” Id. at 557.
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In Walker, our supreme court first discussed the due process and
fundamental fairness concerns, including the “cred it for time at liberty” doctrine:
The effect of an inordinate delay in the execution of a criminal
judgment has been frequently litigated in other courts. Even w here
the delay results from simple negligence or oversight, the courts
have recognized that relief from the sentence might be ava ilable on
due process grounds. In [these] cases the courts also analyzed the
claims on the basis of waiver or estoppel but refused relief on any
basis because of the high standard that must be met before relief is
available. (The State’s action “must b e so affirm atively wron g or its
inaction so grossly negligent that it would be un equivo cally
inconsistent with ‘fundamental principles of libe rty and justic e’ to
require a legal sentence to be served in the aftermath of such action
of inaction.”)
Another doctrine called “cred it for time at liberty” has been
invoked where the de fendant has been incarce rated unde r a
criminal judgmen t but erroneou sly released thro ugh no fault of h is
own. Unde r those circ umsta nces the courts hold that his sentence
continues to run wh ile he is at liberty. We know of no instance,
however, where this doctrine has been applied to a situation w here
no time at all has been served.
In other cases, most of them in the state courts, where the
defendant has presented himself for incarceration and has been
refused admission for some reason (an overcr owde d jail or s imple
inaction on the part of the jailer) the courts have said that the
sentence began to run w hen th e defe ndan t did all that was required
of him to allow the imposition of the criminal sentence.
The lack of in depth analysis in some of the state
case s—p articula rly the part played by state statutes—persuades us
that there is no uniform constitutional standard that has been
applied in cases where a defe ndan t is refus ed ad miss ion to th e jail
because of overcrowded conditions. We cannot say that under
those conditions the State’s action is so affirmatively wrong or
gross ly neglig ent tha t further incarc eration would be inconsistent
with fundamental principles of liberty and justice. We will, therefore,
exam ine the qu estion ba sed on our own statutes.
Id. at 555-56 (citations o mitted).
In the case at bar, as in Walker, we cannot conclude that service of the
Defe ndan t’s senten ces wo uld violate his due process rights or otherwise offend
principles of fundam ental fairness. He re, the Defend ant received an effective
sentence of two years. Due to overcrowded jail conditions, space was not
availab le to acc omm odate incarceration of the D efendant for ap proximately a
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year after he was sentenced. Any inconvenience to the Defendant is certainly not
sufficient to violate D efenda nt’s due p rocess rights. Under these conditions and
circumstances, we ca nnot c onclu de tha t the Sta te’s ac tion is so affirma tively
wrong or gross ly negligen t that incarc eration w ould be inconsis tent with
fundamental principles of liberty and justice. We therefore examine the issue
based on the statutes enacted by our legislature.
In Walker, our supreme court analyzed the applicable statutes and found
a legislative intent that the sheriff shall commit a defendant to jail as
soon as possible after the re ndition of th e judgm ent and that a
judgment requiring incarceration should specifically provide that the
sentence begins to run “on the day on wh ich the defen dant le gally
comes into the custody of the sheriff for execution of the judgment
of impriso nmen t.”
Id. at 556.
The court also noted in W alker that the sheriff was authorized to convey
prisoners to othe r jails in the st ate if the jail in the sh eriff’s coun ty was insu fficient.
Id. The co urt noted that the sh eriff had not committed Walker to jail as soon as
possible because the re was n o proof in th e record that the sh eriff attemp ted to
find the “nearest su fficient jail.” Id. at 557.
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The Walker court concluded as follows:
What is the remedy for persons sentenced to jail who have
presented themselves to the proper authorities for incarceration and
have been denied their request to begin serving their sentences
immed iately? We are persuad ed that our statutes requ ire more than
a passive course of non-action that leaves such persons living
indefin itely under an unexecuted criminal sentence. Therefore, we
hold that wh ere pe rsons unde r a crim inal se ntenc e imm ediate ly
present themselves to the appropriate authorities for incarceration
and are turne d away th e sente nce in each case shall begin to run
when the jud gme nt of co nviction beco mes final or th e priso ner is
actually incarcerated , whichever is earlier.
Id. at 557 (em phasis add ed).
It appears clear that the court’s decision in Walker was base d on statutory
construction and a determination of legislative intent. By the time our supreme
court’s opinion in Walker was filed, our legislature had enacted new statutes
concerning the time and manner of service of DUI sentences.3
Chapter num ber 52 4 of the Public Acts of 1995 amended Tennessee Code
Annotated § 55-10-40 3 by adding the following new su bsection (p):
(p)(1) An offender sentenced to a period of incarceration for
a violation of Tennessee Code Annotated, 55-10-401, shall be
required to commence service of such sentence within thirty (30)
days of con viction or, if space is not immediately available in the
approp riate municipal or cou nty jail or workhouse within such time,
as soon as suc h spa ce is available. If in the opinion of the sheriff or
chief administrative officer of a local jail or workhouse, space will not
be available to allow an offender convicted of a violation of
Tennessee Code Annota ted, 55-10-401, to commence service of
such sentence within ninety (90) days of conviction, such sheriff or
administrative officer shall use alternative facilities for the
incarceration of such offender. If an offender convicted of a violation
of Ten ness ee Co de An notate d, 55-1 0-401 , prior to th e effec tive date
of this act has not commenced se rvice of the sentence imposed
3
The Walker court noted the passage of public chapter number 524 of the Acts of 1995
and observed that the new law “may” affect the ruling announced in Walker. Walker, 905
S.W.2d at 557 n.1. The new statutory provisions were not in effect until July 1, 1995 and only
applied to the service of sentences pronounced on or after that date. 1995 Tenn. Pub. Acts
524, sec. 3.
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within ninety (90) days [of] such offender’s conviction, the sheriff or
administrative officer sha ll, after notifying the offender, use
alternative facilities for the incarceration of such offender. The
approp riate county or municipal legislative body shall approve the
alternative facilities to be used in such coun ty or municipality.
(2) As used in this subsection “alternative facilities” include,
but are not limited to, vacant schools or office buildings or any other
building or structure owned , controlled or used by the ap propriate
governmental entity that would be suitable for housing such
offenders for short periods of time on an as-n eeded basis. A
governmental entity may contract with another governmental entity
or private corporation or person for the use of alternative facilities
when needed and govern mental en tities may, by agreem ent, share
use of alternative facilities.
(3) Noth ing in th is subs ection shall be construed to give an
offender a right to serve a sentence for a violation of Tennessee
Code Annotated, Section 55-10-401, in an alternative facility or
within a specified period of time. Failure of a sheriff or chief
administrative officer of a jail to require an offender to serve such a
sentence within a certain period of time or in a certa in facility or type
of facility shall have no effect upon the validity of the sentence.
1995 Te nn. Pub. Ac ts 524, sec. 2 (em phasis add ed).
This act specifically applies only to se ntenc es for D UI. Th is law cle arly
expresses the legislative intent that DUI offenders begin serving their sentences
within thirty days of conviction if space is available. If the sheriff is of the opinion
that space will not be available with in ninety da ys, the legis lature exp resses its
intent that the sheriff arrange for alternative facilities for the incarceration of the
offend er. Th e legis lature h as clea rly expressed its intent that jail sentences for
DUI conviction s be pro mptly se rved. W e believe, howev er, that the legislature
has also clearly expressed its intent that the failure of the sheriff to requ ire a DUI
offender to serve a sentence within a certain period of time does not relieve the
offender from the requirement of serving the sentence.
In summarizing the proposed bill to the mem bers of the Jud iciary
Committee of the Tennessee House of Representatives, Representative Roy
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Herron, the sponsor of the bill, explained that the legislation provided “if the
sheriff doesn ’t require that as he’s su ppos ed to . . . if so meh ow the ball’s
dropped, that doesn’t mean you don’t have to serve the time.” He further stated
that the bill “makes clear that if for some reaso n, you d on’t be gin se rving w ithin
the time per iod requ ired by law , that that doesn’t mean your sentence is no
longer valid.” H. Judiciary Comm., 99th Gen. Assembly (Tenn., Apr. 5, 1995)
(statemen t of Represen tative Roy Herro n).
W e believe that by ena cting chapter n umber 524 of the Public Acts of
1995, the legislatu re intend ed that a DUI offender not escape responsibility for
serving a sentence simply because space was not available to serve th e
sentence in the co unty jail w ithin a s pecifie d period o f time. Sub ject to
constitutional constraints, policy decisions su ch as this are within the purview of
the legislature. Under the facts presented in this case, we cannot conclude that
requiring the De fenda nt to se rve his s enten ce wo uld be inconsisten t with
fundamental principles of liberty and justice in violation of the Defendant’s due
process rights.
The judgment of the trial court is accordingly affirmed.
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DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
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DAVID G. HAYES, JUDGE
___________________________________
NORMA McGEE OGLE, JUDGE
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