Elzey v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 18, 1997
• Docket: 03C01-9703-CR-00097
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED OCTOBER 1997 SESSION December 18, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk DAVID ELZEY, * C.C.A. # 03C01-9703-CR-00097

Appellant, * JOHNSON COUNTY

VS. * Hon. Lynn Brown, Judge

STATE OF TENNESSEE, * (Habeas Corpus)

Appellee. *

For Appellant: For Appellee:

David Elzey, Pro Se John Knox Walkup NECC # 10095 Attorney General and Reporter P.O. Box 5000 Mountain City, TN 37683 Peter M. Coughlan Assistant Attorney General 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, TN 37243-0493

David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE OPINION

The petitioner, David Elzey, filed a petition for habeas corpus relief

which was denied by the trial court. In this appeal of right, the petitioner complains

that an extension of his release eligibility date by twenty percent pursuant to the

policy 502.02 of the Department of Correction constituted cruel and unusual

punishment contrary to the state and federal constitutions, a violation of the ex post

facto clause of the state and federal constitutions, and an unauthorized exercise of

administrative authority.

We affirm the judgment of the trial court.

The petitioner has alleged that he was convicted on August 1, 1988, of

six separate crimes occurring in Hardin County and on September 1, 1988, of one

crime in Tipton County. He concedes that on June 4, 1990, while lawfully

incarcerated, he escaped from the Turney Center prison facility in Only, Tennessee,

and was apprehended the next day. Because of the escape, the Department of

Correction increased his release eligibility date under his original sentences by

twenty percent.

In this state, a writ of habeas corpus may be granted only when a

petitioner has established lack of jurisdiction for the order of confinement or that he

is otherwise entitled to immediate release because of the expiration of his sentence.

See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,

443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his

liberty, under any pretense whatsoever, ... may prosecute a writ of habeas corpus,

to inquire into the cause of such imprisonment...." Tenn. Code Ann. § 29-21-101.

The writ of habeas corpus, however, is available only when it appears on the face of

2 the judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence or imprisonment has otherwise expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,

62 (Tenn. 1992).

A challenge to the propriety of a release eligibility date or questions

about parole or sentence credits have no bearing upon the validity of the

convictions. Questions such as this, because the Department of Correction is an

agency of the state government, should be addressed through the Administrative

Procedures Act. Tenn. Code Ann. §§ 4-5-101 to -324. Thereafter, any judicial

review must first be in the chancery court. Brigham v. Lack, 755 S.W.2d 469, 471

(Tenn. Crim. App. 1988); Tenn. Code Ann. § 4-5-323.

Accordingly, the judgment dismissing the writ of habeas corpus is

affirmed.

________________________________ Gary R. Wade, Judge

CONCUR:

_____________________________ David H. Welles, Judge

_____________________________ Jerry L. Smith, Judge