dissenting.
I respectfully dissent. Both of these defendants were charged with driving while intoxicated, second offense. Both were sentenced as first offenders upon their guilty pleas to the lesser offense. They have received all of the largesse that they are entitled to under the statutes of this state or upon the principles of fundamental fairness.
I.
The trial judge found, in part, as follows:
I find as a matter of fact that the jail and all jail facilities, places of incarceration in Madison County which could be used to incarcerate Mr. Walker for his 20 days or whatever, that we had a situation ... being under federal court order, we didn’t have room in the jails ... and I find that he could not have been taken within that one year period. He could not have been constitutionally incarcerated because of the overcrowding and court orders.
The findings of fact with respect to defendant Love were the same.
II.
The first ground upon which the majority relies to relieve these defendants from serving any prison time is a statute1 that was not relied upon by the defendants in the trial or appellate courts, nor was it mentioned by any court prior to its appearance in the majority opinion. That would not prevent this Court from relying upon the statute if the undisputed facts in the record clearly invoked the statute, and its invocation was essential to reach the correct result. See City of Memphis v. International Brotherhood of Electrical Workers Union, 545 S.W.2d 98 (Tenn.1976) and cases cited therein.
However, that is not the ease here. The language of the statute limits “insufficient” jails to those that are insufficient, “for the safe keeping of a prisoner.” When the legislature passed that statute, no one had ever heard of unconstitutionally overcrowded jails. (1809, 1817).
Not only does the majority ignore the plain language of the statute, but they refute the finding of the trial judge that defendants could not have been constitutionally incarcerated earlier, by finding that because the sheriff did not prove that he attempted to find a sufficient jail in a nearby county, it could not be said that he complied with the statutory admonition that he commit defendants to jail “as soon as possible”. If defendant had relied upon that position in the trial court, the sheriff would have had no difficulty in proving the futility of that effort.
The statute that the majority misinterprets merely authorizes the sheriff to convey prisoners to the nearest sufficient jail — it is not a mandate. But, if it did mandate a search for a sufficient jail in another county, it would be a useless, futile act.
III.
The other ground asserted by the majority is that fundamental fairness demands that these defendants should not have to “live indefinitely under an unexecuted criminal sentence.” I think it would be equally valid to observe that all criminal defendants would rather live indefinitely under an unexecuted sentence than to serve one day in jail. Be that as it may, neither of these defendants protested the delay in any way, nor did they seek relief from the indefinite burden of delay by petitioning the sheriff or the trial court, until they were notified to report to serve their sentences.
On cross-examination defendant Walker was asked if he had been prejudiced by not being able to serve the 20 days immediately after the conviction. The substance of his answer was that he had his own business and had better employees, then, than now, that his employees are stealing from him and it would cost him money if he had to go to jail. Those circumstances have no bearing whatsoever on the fundamental fairness issue. So, neither defendant has articulated a foundation for a finding of fundamental unfairness in the delay of imprisonment, nor has the majority, beyond decreeing it because *559defendants were not incarcerated immediately after sentence.
There is no precedent for invoking the fundamental fairness doctrine in these circumstances. The cases require government or state actions that “are so affirmatively improper or grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in its aftermath.” See Green v. Christiansen, 732 F.2d 1397 (9th Cir.1984); Mobley v. Dugger, 823 F.2d 1495 (11th Cir.1987); U.S. v. Martinez, 837 F.2d 861 (9th Cir.1988) and cases cited therein. The majority makes no claim that state action in this case attains that high degree of prejudicial misconduct.
The majority decrees that the sentences of drunk drivers begin to run when the judgment of conviction becomes final, or the prisoner is actually incarcerated, whichever is earlier. A conviction becomes final, absent appeal, in 30 days after entry of judgment. Thus, absent jail space, the sentence of convicted drunk drivers who fit into the profile of Walker and Love will expire in 50 days without serving a day in jail. No one can predict the number of drunk drivers that will be the beneficiaries of this judicial gratuity. But another result of this ipse dixit decision is predictable — to wit, that the Tennessee Criminal Justice System has taken another significant step toward total elimination of deterrence. Deferring the effective date three months is insufficient time for the legislative branches of government to cure jail overcrowding.
I would hold that sentences of imprisonment do not commence until the day on which a defendant legally comes into the custody of the sheriff; that these two defendants did not legally come into the custody of the sheriff of Madison County because of the federal court order, and the finding of the trial judge that the sheriff could not legally or constitutionally accept them as prisoners until the respective dates they were directed to report; that is in accord with the clear meaning of Tenn.Code Ann. § 40-23-101(a), applied to the undisputed facts of this case.
I would affirm the judgment of the trial court and the Court of Criminal Appeals denying relief.
. Tenn.Code Ann. § 41-4-121(a), p. 556 majority opinion.