State v. Terrance Royal/Richard Marlowe

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 13, 1997
• Docket: 02C01-9609-CR-00299
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1997 FILED TER RANC E RO YAL a/k /a ) C.C.A. NO. 02C01-9609-CR-00299 Richard Marlowe, ) October 13, 1997 ) Cecil Crowson, Jr. Appe llant, ) Appellate C ourt Clerk ) ) SHELBY COUNTY VS. ) ) HON. CHRIS CRAFT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TER RAN CE R OYAL a/k/a JOHN KNOX WALKUP Richard Marlowe Attorney General and Reporter Fla. D.C. #066519 Hendry Correctional Institution JANIS L. TURNER Immokalee, FL 34142 Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

JOHN W. PIEROTTI District Attorney General

AMY WEIRICH Assistant District Attorney General Criminal Justice Complex, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defen dant, a Florid a inm ate, ap peals from th e trial co urt’s de nial of h is

petition seeking relief from a Tennessee conviction and sentence. The trial court

treated the petition as a petition for post-conviction relief and dismissed it as

barre d by the statute of limita tions. W e affirm the dis miss al.

On Janua ry 15, 199 2, the Defendant entered guilty pleas to and was

convicted of one count of felony cocaine poss essio n and one c ount o f felony b ail

jumping. He received concurrent se ntences of fou r years and one ye ar, ordered

to be ser ved con secutively to certain se ntence s he rece ived in Florid a.

On April 27, 19 95, the D efenda nt filed a petition to “set aside, modify or

mitigate sentence” which was denied by the trial court on April 28, 1995. On May

3, 1996, the Defendant filed a petition for post-conviction relief from these

convictions, which was d ismissed by the trial court on May 14, 1996, based on

the statute of limitations.

On July 8, 1996, the Defe ndant filed a “ PET ITION FOR WR IT OF ERROR

CORAM NOBIS, or in the alternative, APPLICATION FOR WRIT OF HABEAS

CORPUS AD SUBJICIENDUM AD DUCE TESTIFICANDUM.” The trial judge

treated this petition as one for post-conviction relief and dismissed it as time

barred. It is from this order of the trial court that the Defendant appeals.

-2- The petition esse ntially alleges that Defendant’s counsel at his guilty plea

proceeding was ineffective for not telling the Defendant that his Tennessee

sentences were to run co nsecu tively to his Flor ida sente nce an d that his g uilty

pleas entered in the T ennesse e cases w ere therefore not knowing, intelligent and

voluntary, because h e would not have pleade d guilty had he kno wn he w as to

receive sentences to be served consecutively to his Florida incarceration.

Habeas corpus relief is available only when a convicting court is without

jurisdiction or autho rity to senten ce a de fendan t or when that defen dant’s te rm

of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993). The Defendant argues that his Tennessee sentences would be

expired if they had been ordered to be served conc urrently with his Florida

sentence. His argument gains him no relief because his Tennessee sentences

were clearly ordered to be served consecutively to the Florida incarceration.

Although the petition alleges grounds for post-conviction relief, the trial

judge correctly determined that the petition was barred by the statute of

limitations. Tenn. Code Ann. § 40-30-20 2; see Carter v. S tate, __ S.W.2d __

(Tenn. 19 97).

The jud gmen t of the trial cou rt is affirmed .

___________________________________ DAVID H. WELLES, JUDGE

-3- CONCUR:

___________________________________ JOE B. JONES, PRESIDING JUDGE

___________________________________ JOE G. RILEY, JUDGE

-4-