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State v. Swann

Court of Criminal Appeals of Tennessee, Knoxville

June 8, 2017

STATE OF TENNESSEE
v.
TONY ARTHUR SWANN

          Assigned on Briefs September 20, 2016

         Appeal from the Criminal Court for Sullivan County No. S49138 R. Jerry Beck, Judge

         Petitioner, Tony Arthur Swann, appeals from the denial of his Tennessee Rule of Criminal Procedure 36 motion to correct a clerical error due to the alleged denial of pretrial jail credits and his Tennessee Rule of Criminal Procedure 36.1 motion alleging that his sentence is illegal because of a probation revocation order. Following our review, we affirm the trial court's decision.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

          Tony Arthur Swann, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; Barry Staubus, District Attorney General; and Kaylin K. Render, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn, J., joined. Robert H. Montgomery, Jr., J., not participating.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE

         Background

         On September 25, 2006, Petitioner pled guilty to aggravated assault in case number S49139 and received a sentence of three years. In case number S49138 he pled guilty to burglary, kidnapping, aggravated assault, and assault. He was sentenced to two years for burglary, three years for kidnapping, three years for aggravated assault, and eleven months, twenty-nine days for assault. The sentences in both cases were ordered to be served consecutively for an effective sentence of eleven years, eleven months, and twenty-nine days on supervised probation. On May 9, 2014, the trial court revoked Petitioner's probation in case number S49138 for leaving the state without permission, failing to pay court costs, and obtaining a new conviction for shoplifting. The trial court ordered Petitioner to serve eight years, eleven months, and twenty-nine days in the Department of Correction.

         On November 17, 2014, Petitioner filed a motion to correct clerical errors and an illegal sentence. Counsel was appointed, and an "Amended Motion to Correct Clerical Errors" was filed on January 22, 2015. On July 27, 2015, Petitioner filed with the court clerk in Blountville a request for presentence jail credits. Petitioner alleged that he served time in jail from June 23, 2006, until September 25, 2006, the date that he was sentenced.

         A hearing was held on July 28, 2015. At the hearing Petitioner argued that he was entitled to pretrial jail credits for time served in the Sullivan County Jail from September 13, 2010, to November 24, 2010; from April 11 to August 10, 2011, and his "trustee" time from February 28, 2014, to June 20, 2014. Petitioner's counsel told the trial court that in the Department of Correction's calculations, Petitioner received credit for those dates in the "time served" category rather than the "pretrial jail credit" category because "the days and months that he's wanting credit for are way after trial; in fact, eight, nine years later, for time when he had [violations of probation] that were served on him, he was picked up, he served in [the] Sullivan County Jail." We note that the record reflects Petitioner left the Department of Correction after April 28, 2014, and served time in the Bledsoe County Jail until June 20, 2014. The Department of Correction lists time from February 28, 2014, through April 28, 2014, as jail credit. Petitioner's counsel did not present into evidence any dates that Petitioner served in jail that he did not receive credit for, including dates before Petitioner received his sentence. The trial court did not consider Defendant's request for pretrial jail credit regarding the June 23, 2006, to September 25, 2006, dates because the request was signed only by Petitioner and there was no letter from the prison. The trial court found that Petitioner received credit for his time served in jail and that he was not entitled to any additional sentencing credits. On August 5, 2015, the trial court filed an order dismissing Petitioner's amended motion to correct clerical errors.

         On December 29, 2015, Petitioner filed a "Motion to Correct Illegal Judgment/Sentence" pursuant to Tennessee Rule of Criminal Procedure 36.1 regarding case number S49138. Petitioner alleged in the motion that the trial court's May 2014 probation revocation order was "facially void, and therefore illegal" because the trial court did not have the authority to revoke probation for sentences that had expired. The trial court construed the motion as a motion to reduce the sentence under Rule 35 of the Tennessee Rules of Criminal Procedure and denied relief in an order entered on January 12, 2016.

         Petitioner filed timely notices of appeal from the orders entered on August 5, 2015, and January 12, 2016. Petitioner then filed a motion requesting that this court consolidate the two appeals. ...


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