# FILED March 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JAMES T. FITE, ) ) C.C.A. NO. 01C 01-9708-CR-00377 Appellant, ) ) DAVIDSON COUNTY VS. ) (No. 2622 Belo w) ) KENNETH LOCKE, WA RDEN, ) The Hon. Seth Norman

) Appellee. ) (Denial of Habeas Corpus Petition) ) AFFIRMED PU RSUANT TO R ULE 20

O R D E R This matter is before the Court upon the state’s moti on requesting that the judgmentin the above-styled caus e 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 acogniz

able cl aim for h abeas co rpus re lief, we grant the state’s motion to affirm the judgment pursuant to Rule 20.

It appea rs that the appellant pled guil ty in Dekalb County

to vehicular homicide, aggravated assault,and felony bail jumping. He was senten ced to ser ve consecu tive sentences of eleven, three, and three years, respectiv ely, as a R ange I offender. This Court affirmed the appellant’s sentences, State v. James T. Fite , No. 89- 218-III (Tenn. Crim. App., at Nashv ille, Apr. 25 , 1990), and subsequently, this Court affirmed the trial court’s denial of post-conviction rel ief, 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 thathis sentence credits hav e 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 peti tion from which the Court c ould conclude that the sentences discussed are, in fact, void. There is nothing in this petitio n from which the Court could conclude that the petitioner is being

illegally detaine

d. After a careful reading of this peti tion, this Cour

t is of the opinion that the-2- matters raised in the petition shoul d have been questioned in a Post Conviction R elief Petition. As far as this Court can tell, the statut e of limitations has long si nce barred in such petition.
It is a well-establ ished principle of law that the remedy of habeascorpus is limited in its nature and its scope. Archer v. State , 851 S.W.2d 157, 16 1-162 (Tenn.1993); Passarella v. State , 891 S.W.2d 619, 62 6 (Tenn. Crim. App.1994). In Tennessee, habeas corpus relief is available only if "'i t appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered,' that a conv icting court was without jurisdictionor authority to sentence a defendant, or that a def endant's sente nce of imprisonmen t o r other restraint has ex pired." Archer v. State , 851 S.W.2d 157, 164 (Tenn.1993) (citation omitted in ori ginal). The appellant has the bu rden of establishing either a void judgment or an illegal confinement by a preponderance of the ev idence. Pas sarell a , 891 S.W.2d at 627. If he successfully carries his burden, the appellant is entitled to immediate release. Id . We find that the app ellant 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 R ules. The petitioner being indigent, costs are taxed to the state.

ENTER, this the ____ day of __________,1998.

_____________________________ JOHN H. PEAY, JUDG E CONCUR: (not participat ing)

_______________ JERRY L. SMITH, JUD GE

_____________________________ THOMAS T. WOODALL, JUDGE