In Tennessee, do criminal defendants get sentencing credit for their first day in jail after arrest, must the court document that credit, and does it count toward release eligibility?

Subject

Opinion No. 11-12, Sentence Credit for Criminal Defendant's First Day of Incarceration Following Arrest, January 27, 2011

Plain-English summary

A state representative asked three questions about pretrial jail credit in Tennessee criminal cases:

1. Does a defendant get credit at sentencing for the first day of jail time after arrest? Yes. Under Tenn. Code Ann. § 40-23-101(c), at the time the trial court imposes sentence and commits the defendant to jail, workhouse, or the state penitentiary, the court "shall . . . render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial." The Tennessee Supreme Court in Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965), held that the language is mandatory: the trial court must give the credit. The "any period of time" language captures the first day.

2. Must the court document the credit? Yes. Tenn. Code Ann. § 40-35-209(e)(1)(P) requires pretrial jail credit to be documented in the judgment order. The judgment order, which the court completes at sentencing, has a designated entry for this credit. Without documentation, the Department of Correction or the local jail cannot reliably apply the credit at release-time calculations.

3. Does pretrial jail credit count toward release eligibility and sentence expiration? Yes. Pretrial jail credits work the same way as other credits for time served. The credit applies both to the eligibility date (when a defendant becomes eligible for release on parole or under any applicable program) and to the sentence expiration date (when the sentence runs out).

The opinion is short and direct because the statutory text is clear. The takeaway is that this credit is not discretionary, not waivable by oversight, and not something a judgment order can leave out. Every day of pretrial detention attributable to the case before the court counts, starting from day one.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why was there ever any doubt about whether the first day counts?

The question of whether arrival-day or release-day "partial days" of incarceration count for credit is a recurring issue in sentencing practice. Some jurisdictions distinguish full days from partial days, and arithmetic disputes can shave a day off the credit calculation. Tennessee's statute uses the phrase "any period of time . . . pending arraignment and trial," which the AG read as broad enough to cover the first day.

What if the judgment order accidentally omits the credit?

The credit is mandatory under Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965), so a judgment order that fails to award it is not in compliance with § 40-23-101(c). Tenn. Code Ann. § 40-35-209(e)(1)(P) requires the credit to be documented. A defendant who notices the omission should bring it to the court's attention promptly; courts have multiple procedural mechanisms to correct judgments to reflect the credit the statute requires.

Does the credit apply to time spent in city jail too?

Yes. The statute specifically lists city jail, county jail, workhouse, and juvenile court detention prior to waiver of juvenile court jurisdiction. The credit attaches to any of those custody locations as long as the time was served pending arraignment and trial on the case for which the defendant is being sentenced.

Does the credit apply if the time in jail was on an unrelated case?

The statute requires the credit for time the defendant "was committed and held . . . pending arraignment and trial" on the case at hand. Time spent in custody on a wholly unrelated charge generally does not earn credit on this case. But if the holds overlap, or if a single jail stay is properly attributable to the case being sentenced, the credit applies.

How does the credit interact with parole and release eligibility?

The AG said pretrial jail credit affects release eligibility and sentence expiration "in the same manner as other types of credit for time served." Practically, this means the credit reduces the time the defendant has to serve in custody before becoming eligible for any release mechanism (parole, sentence reduction credits, expiration), just like any other time the defendant has already served on the sentence.

What's the statutory basis for the documentation requirement?

Tenn. Code Ann. § 40-35-209(e)(1)(P), the judgment-order statute, lists the items that must appear on the standard Tennessee judgment order, including pretrial jail credit. The judgment order is the document that follows the defendant through the system and tells the receiving custodian what credits apply. Documentation in the judgment order is how the credit operationally gets applied.

Background and statutory framework

The pretrial jail credit statute, Tenn. Code Ann. § 40-23-101(c), provides:

The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial.

The mandatory language ("shall") and the broad temporal phrase ("any period of time") together produce a hard rule. The Tennessee Supreme Court confirmed in Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965), that the provisions of this code section are mandatory.

Tenn. Code Ann. § 40-35-209(e) supplies the procedural backbone: the judgment order is the official record of the conviction and sentence, and subsection (e)(1) lists the items that must appear on the order. Subsection (e)(1)(P) requires pretrial jail credit to be included.

The release-eligibility and sentence-expiration question is mechanical. Pretrial jail credit functions as time already served on the sentence. It reduces both the time to release eligibility and the time to sentence expiration, on the same terms as other credit for time served. Nothing in the statute carves out a different treatment for pretrial credit.

Citations

• Tenn. Code Ann. § 40-23-101(c) (mandatory pretrial jail credit)
• Tenn. Code Ann. § 40-35-209(e)(1)(P) (judgment order documentation requirement)
• Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-012.pdf

Original opinion text

January 27, 2011

Opinion No. 11-12

Sentence Credit for Criminal Defendant's First Day of Incarceration Following Arrest

QUESTIONS

1. Are criminal defendants given credit at sentencing for their first day of incarceration upon being arrested?

2. If so, is this credit required to be documented by the court?

3. If so, does this initial incarceration count toward release eligibility and sentence expiration.

OPINIONS

1. Yes, at sentencing criminal defendants are given credit for their first day of incarceration upon being arrested.

2. Yes, pretrial jail credit must be documented by the court in the judgment order.

3. Pretrial jail credits affect release eligibility and sentence expiration in the same manner as other types of credit for time served.

ANALYSIS

A defendant is given credit on his sentence by the trial court for any period of time in which the defendant was committed and held in the county jail or workhouse pending arraignment and trial, provided the time spent in jail arises out of the original offense for which the defendant was tried. Tenn. Code Ann. § 40-23-101(c). The statute provides specifically in pertinent part:

The trial court shall, at the time the sentence is imposed and the defendant is committed to jail, the workhouse or the state penitentiary for imprisonment, render the judgment of the court so as to allow the defendant credit on the sentence for any period of time for which the defendant was committed and held in the city jail or juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail or workhouse, pending arraignment and trial.

(emphasis added). The provisions of this code section are mandatory. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965). Pretrial jail credit must be documented by the court in the judgment order. Tenn. Code Ann. § 40-35-209(e)(1)(P). Pretrial jail credits affect release eligibility and sentence expiration in the same manner as other types of credit for time served.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

KIMBERLY J. DEAN
Deputy Attorney General

Requested by:
The Honorable Barbara Cooper
State Representative
38 Legislative Plaza
Nashville, TN 37243-0186