State v. Ricky Harris

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 23, 1997
• Docket: 02C01-9610-CC-00324
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED AUGUST SESSION, 1997 October 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

RICK Y HAR RIS, ) C.C.A. NO. 02C01-9610-CC-00324 ) Appe llant, ) ) LAKE COUNTY ) V. ) ) HON. JOE G. RILEY, JR., JUDGE BILLY COMPTON, WARDEN, ) ) Appellee. ) (HABEAS C ORPU S)

FOR THE APPELLANT: FOR THE APPELLEE:

RICKY HARRIS, PRO SE JOHN KNOX WALKUP #121445, L.C.R.C.F Attorney General & Reporter Route 1, Box 330 Tiptonville, TN 38079-9775 CLINTON J. MORGAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

C. PHILLIP BIVENS District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

Petitioner, Ricky H arris, appeals the trial court’s denial of his petition for

writ of habe as corp us. The Petitio ner was indicted and pled gu ilty to a forgery

charge. Subsequ ently he was co nvicted of first degree m urder. Curren tly,

Petitioner is serving a life sentence on the first degree murder conviction which

is consecutive to a three-year sentence for forgery. In this appea l, the Petitioner,

relying on State v. Rog er Da le Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne

Coun ty (Tenn. Crim. App., Nashville, June 20, 1996), perm. to app. granted,

(Tenn. 1996), contends the judgment entered against him on the forgery charge

is void because the indictment failed to allege th e men s rea of the offense. W e

affirm the ju dgme nt of the trial co urt.

Habeas corpus relief is only available when “it appears upon the face of the

judgment or the record of the proceedings upon which the judgment is rendered

that a convicting court was without jurisdiction or authority to sentence a

defend ant, or that a defendant’s sentence of imprisonment or other restraint has

expired.” Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93). Petition er asse rts

the forgery co nviction is vo id due to th e failure of th e indictm ent to allege he

intentionally, knowingly or recklessly signed the name of a corp oration not yet in

existence. Tenn. Code Ann. § 39-3-802 (repealed 1989). The trial judge

dismissed the petition stating that it was without merit for two reasons: (1) The

sufficiency of the indictment is not the proper subject of habeas corpus relief and

(2) Petition er’s life sente nce ha s not exp ired.

-2- Habeas corpus relief is not available if the Petitioner may still be legally

detained under a conviction other than the one being attacked in the petition for

writ of habe as corp us. Ussery v. Avery , 222 Tenn. 50, 432 S.W.2d 656, 658-59

(1968); Tenn. C ode Ann . § 29-21-122 (b)(2). It is clear from the record that

Petitioner is serving a sentence of life imprisonment for the conviction of first

degree murder, and he doe s not con test that co nviction. Furthermore, a logical

interpretation of the facts, as se t forth in the p etition, sug gests that Petitioner has

com pletely served his sentence for forg ery. He was c onvicted of forgery on June

13, 1986, and was placed on probation for three years. On May 8, 1988, after

convic tion for first degree murder, his probation on the forgery conviction was

revoked and the sentence of life imprisonment was ordered to run consecutive

to the three-year sentence for forgery. Assuming that he served the entire three-

year sentence for forg ery, that sentence would have been completely served no

later than May of 1991, a little more than five years prior to the filing of his petition

for writ of ha beas corpu s. In an y even t, Petition er is pre sently la wfully

incarcerated on a sentence of life imprisonment, and is not entitled to habeas

corpus relief on the forgery co nviction. Ussery v. Avery, 432 S.W.2d at 659.

Accord ingly, we affirm the judgm ent of the tria l court.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

-3- ___________________________________ DAVID G. HAYES, Judge

___________________________________ JERRY L. SMITH, Judge

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