George French v. State, Ricky Bell, Warden

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 12, 1999
• Docket: 01C01-9801-CR-00022
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED DECEMBER 1998 SESSION January 12, 1999

Cecil W. Crowson GEORGE EDWARD FRENCH, ) Appellate Court Clerk ) Appellant, ) No. 01C01-9801-CR-00022 ) ) Davidson County v. ) ) Honorable J. Randall Wyatt, Jr., Judge ) RICKY BELL, Warden, ) (Habeas Corpus) and STATE OF TENNESSEE, ) ) Appellees. )

For the Appellant: For the Appellee:

George Edward French, Pro se John Knox Walkup T.D.O.C. No. 107854 Attorney General of Tennessee R.M.S.I., U-6-B-117 and 7475 Cockrill Bend Road Elizabeth B. Marney Nashville, TN 37209-1010 Assistant Attorney General of Tennessee 425 Fifth Avenue North Nashville, TN 37243-0493

Victor S. Johnson, III District Attorney General and Elizabeth B. Marney Assistant District Attorney General Washington Sq., 222 2nd Ave. N. Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

Joseph M. Tipton Judge OPINION

The petitioner, George Edward French, pro se, appeals as of right from

the dismissal of his petition for a writ of habeas corpus by the Davidson County Criminal

Court. He is presently in prison serving an eighty-year sentence, as a Range II

offender, upon his conviction in 1983 for armed robbery. He contends (1) that the

sentencing court did not have the authority to sentence him as a Range II, persistent

offender because he did not have a sufficient number of prior felony convictions to

qualify as such and (2) that insufficient evidence existed to show beyond a reasonable

doubt that he qualified as a Range II, persistent offender. Also, he seeks the

appointment of counsel and oral argument.

A petition for the writ of habeas corpus relative to a person imprisoned

pursuant to a judgment of conviction may be brought to contest confinement if the

judgment is void or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993). However, if the claimed illegality renders the judgment or sentence

voidable, rather than void, no relief can be granted. Id. at 161. Moreover, claims based

upon factual disputes that were already resolved at the sentencing hearing, such as the

petitioner’s sentencing range, are not subject to relitigation in a habeas corpus

proceeding. See State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 247, 364 S.W. 2d

887, 889 (1963). Also, absent there being a colorable claim for a writ, there is no need

to appoint counsel. Similarly, there is no need for oral argument.

After a full consideration of the record, the briefs, and the law governing

the issues presented, we are of the opinion that no error of law exists that would require

a reversal and that no precedential value would be derived from the rendering of an

2 opinion. Therefore, we conclude that the judgment of the trial court should be affirmed

pursuant to Rule 20, Tenn. Ct. Crim. App.

_____________________________ Joseph M. Tipton, Judge

CONCUR:

____________________________ John H. Peay, Judge

_____________________________ Norma Ogle, Judge