State Ex Rel. Wade v. Norvell

443 S.W.2d 839, 1 Tenn. Crim. App. 447, 1969 Tenn. Crim. App. LEXIS 285

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 27, 1969
• Status: Published

Opinions

OPINION

WALKER, Presiding Judge.

The petitioner appeals from the dismissal of his petition for habeas corpus without an evidentiary hearing. After his answer, the respondent moved to dismiss the petition. The Court sustained the motion on the ground that the sole ground alleged for relief was denial of good time while on parole.

On November 20, 1967, the petitioner entered a plea of guilty to larceny from the person and was sentenced to three years in the penitentiary with credit for 360 days in jail awaiting trial. He says that in March, 1968, he appeared before the pardon and parole board and was informed that he had lost all of his good time on a previous 1962 sentence; that the earlier sentence had expired and the board had no authority to take it. The petitioner asks the Court to determine the beginning and final date of his November 20, 1967, sentence.

This petition was filed in the trial court April 29, 1968. It does not contend that the conviction was void or that it had expired. It merely seeks an advisory opinion on the beginning and ending of his sentence. Declaratory relief is not the function of habeas corpus. From his petition, it appears that the time during which he may be legally detained has not expired. When the petition shows he is lawfully detained and there is nothing in it to indicate that his conviction was void or expired, the trial court may properly dismiss the petition without a hearing. See T.C.A. Sec. 23-1831; State ex rel. Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280. It is not necessary to remand this case for the respondent’s authority under Ussery v. Avery, Tenn., 432 S.W.2d 656, because the petition does not claim that the sentence has expired.

The judgment of the trial court dismissing the petition is affirmed.