State v. Fred Smith ( 1999 )

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
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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
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