State v. Fred Smith

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 28, 1999
• Docket: 02C01-9906-CC-00185
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1999 FILED October 28, 1999

Cecil Crowson, Jr. Appellate Court Clerk FRED E. SMITH, * * No. 02C01-9906-CC-00185 Appellant, * * LAKE COUNTY vs. * * Hon. R. LEE MOORE, JR., Judge STATE OF TENNESSEE, * * (Writ of Habeas Corpus) Appellee. *

For the Appellant: For the Appellee:

Fred E. Smith, Pro Se Paul G. Summers NWCX, Site 2 Annex Attorney General and Reporter Route 1, Box 660 Tiptonville, TN 38079 J. Ross Dyer Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493

C. Phillip Bivens District Attorney General P. O. Drawer E Dyersburg, TN 38024

OPINION FILED:

AFFIRMED

David G. Hayes, Judge OPINION

The appellant, Fred E. Smith, appeals the Lake County Circuit Court’s

dismissal of his pro se petition for writ of habeas corpus. On March 2, 1989, the

appellant pled guilty in the Macon County Criminal Court to second degree murder

and received a fifty year determinate sentence as a range one standard offender

under the 1982 Sentencing Act. He is currently confined at Northwest Correctional

Complex in Lake County. The instant petition was filed on April 30, 1999.

On appeal, the appellant contends that (1) his sentence has expired; (2) the

trial court should have required the State to respond to his petition; (3) the trial court

should have granted an evidentiary hearing; and (4) the trial court failed to make

findings of fact and conclusions of law. It is well-established that habeas corpus

relief is limited and available in Tennessee only when the face of the judgment or

the record of the proceedings upon which the judgment is rendered reveals that the

convicting court was without jurisdiction or authority over the appellant or that the

appellant’s sentence of imprisonment has expired. Archer v. State, 851 S.W.2d

157, 164 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994). If, from the face of the petition, the reviewing court finds nothing to indicate

that the appellant’s challenged convictions might be void or not entitled to any relief,

the court shall dismiss the petition and refuse the issuance of the writ. Tenn. Code

Ann. § 29-21-109 (1980). Moreover, habeas corpus proceedings are essentially

civil in nature and the Rules of Civil Procedure are applicable where consistent with

Tenn. Code Ann. § 29-21-101 et. seq. Tenn. R. Civ. P. 12 provides trial courts the

authority to dismiss pleadings which fail to state a claim upon which relief may be

granted.

In his brief, the appellant argues that, as a range one offender with a thirty

percent release eligibility date, he “negotiated” and “bargained” for a fifteen year

2 sentence of actual confinement and that his sentence expired on October 21, 1998.

Although the record does reflect that October 21, 1998, was the appellant’s release

eligibility date which lies under the sole discretion of the parole board, the record

further reflects the appellant’s sentence does not expire until October 23, 2033. The

appellant confuses the terms “sentence” and “parole.” Parole does not cause the

sentence to expire or terminate, but is merely a conditional release from

confinement. See Doyle v. Hampton, 340 S.W.2d 891, 893 (1960). Indeed, even

though released from confinement, the defendant continues in constructive custody

until the expiration of the full term of his sentence. Howell v. State, 569 S.W.2d 428,

433 (Tenn. 1978). Because we find the appellant’s petition fails to establish that his

conviction is void or that his sentence has expired, this issue is without merit.

For the foregoing reasons, the trial court’s summary dismissal of the petition

is affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

______________________________________ JOE G. RILEY, Judge

______________________________________ THOMAS T. WOODALL, Judge