IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

GARY DEWAYNE DONALD, ) C.C.A. NO. 01C01-9710-CR-00481

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. J. RANDALL WYATT, JR.

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction Relief)

FOR THE APPELLANT: FOR THE APPELLEE:

GARY DEW AYNE DONALD JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

TDOC #221716

Lake Co. Reg. Corr. Facility TIMOTHY F. BEHAN

Tiptonville, TN 38079 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

VICTOR S. JOHNSON

District Attorney General

Washington Square Building

2nd Avenue North

Nashville, TN 37201

ORDER FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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ORDER

On May 4, 1993, Appellant Gary Dewayne Donald pleaded guilty in the

Davidson County Criminal Court to second degree murder. He waived the

sentencing range pursuant to State v. Mahler, 735 S.W.2d 226 (Tenn. 1987).

Appellant was sentenced as a Range I standard offender to fifty years

incarceration with the Tennessee Department of Correction. On appeal, he

presents the following issue for our review: whether the trial court erred in

dismissing Appellant's petition for the writ of habeas corpus or post-conviction

relief.

After a review of the record, we affirm the judgment of the trial court

pursuant to Court of Criminal Appeals Rule 20.

On March 12, 1997, Appellant filed his pro se petition for writ of habeas

corpus or, in the alternative, post-conviction relief in the Davidson County

Criminal Court. The trial court dismissed the petition without a hearing on May

15, 1997. Both in his petition and on appeal, Appellant alleges the following:

(1) Appellant's guilty plea was not entered knowingly and

voluntarily;

(2) Appellant received ineffective assistance of counsel;

(3) Appellant agreed to an illegal sentence not permitted by

Tenn. Code Ann. § 40-35-112, as that section does not allow

a defendant to be sentenced to fifty years incarceration with

30 percent release eligibility; and

(4) The trial court misapplied certain enhancement and

mitigating factors.

In Tennessee, it is well-settled law that the rem edy of habeas corpus is

limited both in scope and in relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In criminal cases, habeas

corpus is available only where the judgment is void or the term of imprisonment

has expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
1Accor ding to his b rief Appe llant is incarce rated in La ke Co unty Reg ional corre ctional fac ility

locatedat Tiptonville, Tennessee.

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The habeas petitioner bears the burden of demonstrating by a preponderance of

the evidence that the judgment of conviction is void or that his term of

confinement has expired. Id. If the petitioner establishes by a preponderance of

the evidence either that his conviction is void or that his term of confinement has

expired, he can obtain immediate release. Warren v. State, 740 S.W.2d 427, 428

(Tenn. Crim. App. 1986).

Appellant’s complaint would at most make his conviction and sentence

voidable, not void. Furthermore, he neglected to file his petition in the most

convenient court to his place of confinement as required by Tenn. Code Ann. §

29-21-105.1 See Gouldin v. State, C.C.A. No. 02C01-9605-CR-00145, Shelby

County (Tenn. Crim. App., Jackson, February 27, 1997). Hence, the petition fails

to qualify as warranting a writ of habeas corpus.

Alternatively, were we to treat this petition as one for post-conviction relief,

it is barred by the statute of limitations. Prior to the adoption of the recent PostConviction Procedure Act, petitions like the present one had to be filed within

three years of the date of the final action of the highest state appellate court to

which an appeal was taken. Tenn. Code Ann. § 40-30-102 (1995, Repl.).

Accordingly, Appellant's statute of limitations for the filing of a petition for postconviction relief began to run on May 4, 1993 and expired three years later on

May 4, 1996. However, the new Post-Conviction Procedure Act, which took

effect on May 10, 1995, subsequently shortened the three-year statute of

limitations to one year. Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996).

When the new Act took effect, the previous three-year statute of limitations had

not expired for Appellant. Because the three-year statute of limitations had not
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expired, Appellant's right to petition for post-conviction relief survived under the

new Act. Accordingly, Appellant had one year from the effective date of the new

Act--May 10, 1995--in which to file for post-conviction relief. Albert Holston v.

State, C.C.A. No. 02C01-9609-CR-00298, Shelby County (Tenn. Crim. App.,

Jackson. July 28, 1997). Appellant filed his petition on March 12, 1997,

approximately ten months after the expiration of the one-year period. We

conclude that the trial court properly dismissed the March 12, 1997 petition as

being barred by the statute of limitations.

With respect to Appellant's third and fourth allegations, we need only point

out that in a post-conviction or habeas corpus proceeding, this Court does not

review a sentence. State v. Bryant, 805 S.W.2d 762, 763 (Tenn. 1991).

Accordingly, we affirm the trial court's judgment pursuant to Court of

Criminal Appeals Rule 20. 

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE