State v. Cedric Franklin ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
CEDRIC LAFONTE FRANKLIN, )
)
Petitioner, ) C. C. A. NO. 02C01-9809-CC-00289
)
vs. ) LAUDERDALE COUNTY
)
STATE OF TENNESSEE,
Respondent.
) No. 5153
)
)
FILED
December 29, 1998
Cecil Crowson, Jr.
ORDER Appellate C ourt Clerk
This matter is before the Court upon motion of the state to affirm the
judgment of the trial court by order rather than formal opinion. See Rule 20, Rules of
the Court of Criminal Appeals. This case represents an appeal from the trial court’s
dismissal of the petitioner’s petition for writ of habeas corpus. On August 3, 1993, the
petitioner was indicted on one count of first degree murder, one count of first degree
felony murder, and one count of especially aggravated robbery. On January 21, 1994,
the petitioner pled guilty to second degree murder and especially aggravated robbery.
No appeal was taken. In his present petition, the petitioner claims that his conviction for
second degree murder is void because second degree murder is not a lesser included
offense of felony murder. The trial court found the petitioner was not entitled to habeas
corpus relief and dismissed the petition.
Habeas corpus relief is available in Tennessee only 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 defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner’s sentence has not
expired. Additionally, the judgment in this case clearly establishes that the convicting
court had jurisdiction to convict the petitioner of second degree murder. The petitioner
was indicted for premeditated first degree murder in addition to felony first degree
murder. Second degree murder is a lesser included offense of premeditated first
degree murder. See e.g. State v. Belser, 945 S.W.2d 776, 790 (Tenn. Crim. App.
1996). Contrary to the petitioner’s argument, the two separate counts of the first
degree murder indictment would not “merge” at trial. See State v. Gautney, 607
S.W.2d 907 (Tenn. Crim. App. 1980).
Accordingly, for the reasons stated above, it is hereby ORDERED that the
state’s motion is granted and the judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be
taxed to the state.
______________________________
JOE G. RILEY, JUDGE
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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