FILED

March 10, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JAMES T. FITE, )

) C.C.A. NO. 01C01-9708-CR-00377

Appellant, )

) DAVIDSON COUNTY

VS. ) (No. 2622 Below)

)

KENNETH LOCKE, WARDEN, ) The Hon. Seth Norman

)

Appellee. ) (Denial of Habeas Corpus Petition)

) AFFIRMED PURSUANT TO RULE 20

O R D E R

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Finding that the trial court properly held that the appellant failed

to state a cognizable claim for habeas corpus relief, we grant the state’s motion to affirm

the judgment pursuant to Rule 20.

It appears that the appellant pled guilty in Dekalb County to vehicular

homicide, aggravated assault, and felony bail jumping. He was sentenced to serve

consecutive sentences of eleven, three, and three years, respectively, as a Range I

offender. This Court affirmed the appellant’s sentences, State v. James T. Fite, No. 89-

218-III (Tenn. Crim. App., at Nashville, Apr. 25, 1990), and subsequently, this Court

affirmed the trial court’s denial of post-conviction relief, James T. Fite v. State, No. 01C01-

9209-CC-00271 (Tenn. Crim. App., at Nashville, Sept. 9, 1993), p.t.a. denied, (Tenn. Feb.

7, 1994).

The appellant contends that he was never properly charged with felony bail

jumping and that his sentence credits have not been calculated properly, thus making his

sentences expired and his plea bargain violated. In denying relief, the trial court held:

There is nothing in this petition from which the Court could conclude that the

sentences discussed are, in fact, void. There is nothing in this petition from

which the Court could conclude that the petitioner is being illegally detained.

After a careful reading of this petition, this Court is of the opinion that the
-2-

matters raised in the petition should have been questioned in a Post

Conviction Relief Petition. As far as this Court can tell, the statute of

limitations has long since barred in such petition.

It is a well-established principle of law that the remedy of habeas corpus is

limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-162 (Tenn.1993);

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App.1994). In Tennessee, habeas

corpus relief is available only if "'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) (citation omitted in original). The appellant has the burden of establishing

either a void judgment or an illegal confinement by a preponderance of the evidence.

Passarella, 891 S.W.2d at 627. If he successfully carries his burden, the appellant is

entitled to immediate release. Id. We find that the appellant has failed to sustain his

burden.

IT IS, THEREFORE, ORDERED that the judgment of the trial court is

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. The petitioner

being indigent, costs are taxed to the state.

ENTER, this the ____ day of __________, 1998.

_____________________________

JOHN H. PEAY, JUDGE

CONCUR:

(not participating)_______________

JERRY L. SMITH, JUDGE

_____________________________

THOMAS T. WOODALL, JUDGE