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Howard v. Tennessee Department of Correction

Court of Appeals of Tennessee, Nashville

December 5, 2016

FRANKLIN HOWARD
v.
TENNESSEE DEPARTMENT OF CORRECTION, ET AL.

          Assigned on Briefs October 4, 2016

         Direct Appeal from the Chancery Court for Davidson County No. 15-254-I Claudia Bonnyman, Chancellor

         This appeal arises from a declaratory judgment action filed by a prisoner to challenge the Tennessee Department of Correction's manner of applying sentence reduction credits to his consecutive sentences. The trial court granted summary judgment to the Department of Correction upon concluding that it properly calculated the petitioner's sentences and credits. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded.

          Franklin Howard, Only, Tennessee, Pro se.

          Herbert H. Slatery III, Attorney General and Reporter, and Charlotte Montiel Davis, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction and Derrick Schofield.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and John W. McClarty, J., joined.

          MEMORANDUM OPINION [1]

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         In January 1995, Franklin Howard was involved with a robbery of a Memphis restaurant that led to the shooting death of the restaurant manager. A jury convicted Howard of premeditated murder, especially aggravated robbery, and conspiracy to commit aggravated robbery. Howard received a life sentence for the murder conviction, twenty-five years for especially aggravated robbery, and six years for conspiracy to commit aggravated robbery. All three judgments of conviction were entered by the criminal court of Shelby County on April 15, 1997. The first judgment was for case number (and indictment number) 95-07822, and it reflected that Howard was found guilty on "Count I" of first degree murder. The judgment provided for a life sentence and credited Howard with 799 days of pretrial jail credit, spanning from February 7, 1995, to April 14, 1997. The second judgment was for case number 95-07823, and it reflected that Howard was found guilty of especially aggravated robbery and sentenced to twenty-five years. The third judgment was for case number 95-07824, and it reflected that Howard was found guilty of conspiracy to commit aggravated robbery and sentenced to six years. Each of the three judgments contained a pre-printed box designated

         "Concurrent with:" and another pre-printed box designated "Consecutive to:".[2] On each of the three judgments, the "Concurrent with:" box was left blank, and the "Consecutive to:" box contained a handwritten notation of the case numbers for the other two sentencing judgments. These boxes indicate that the three sentences were to run consecutively rather than concurrently, but the criminal court did not specifically state the order or sequence in which the three consecutive sentences would be served. However, the criminal court only credited Howard with pretrial jail credit toward the life sentence for first degree murder, and it did not provide any pretrial jail credit for the other two sentences.

         Howard appealed to the Tennessee Court of Criminal Appeals and ultimately to the Tennessee Supreme Court. In State v. Howard, 30 S.W.3d 271, 273 (Tenn. 2000), the Tennessee Supreme Court concluded that the trial court's failure to properly instruct the jury required reversal of Howard's conviction for first degree murder. Because this was a "trial error, " as opposed to an issue of evidentiary insufficiency, the supreme court concluded that Howard should be retried for first degree murder. Id. at 277. Accordingly, the supreme court reversed the murder conviction and remanded to the trial court for a new trial. Id. at 278.

         After a trial on remand, Howard was again found guilty of first degree murder and sentenced to life in prison. The new judgment of conviction, dated March 28, 2002, listed the original case number of 95-07822 and again indicated that Howard was found guilty on Count I and given a life sentence. The "Consecutive to:" box again listed the case numbers for the other two sentences: 95-7823 and 95-7824. The criminal court credited Howard with 2, 676 days of pretrial jail credit toward his life sentence, spanning the following periods: February 7, 1995 to April 14, 1997; April 15, 1997 to September 14, 2000; and September 15, 2000 to June 5, 2002. The order contains a handwritten notation indicating that Howard's case was "reversed in appeal courts" during that time.

         On appeal after the retrial, the Court of Criminal Appeals affirmed the conviction for premeditated murder and held that the trial court did not abuse its discretion in again imposing consecutive sentencing. State v. Howard, No. W2002-01680-CCA-R3-CD, 2004 WL 2715346, at *16 (Tenn. ...


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