IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1998 GARY DEWAYNE DONALD, ) C.C.A. NO. 01C01-9710-CR-00481 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J.RANDAL L WYATT,JR. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT : FOR THE APPELLEE : GARY DEW AYNE DONALD JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter TDOC #221716 Lake C o. Reg . Corr. Fa cility TIMOTHY F. BEHAN Tiptonvil le, TN 38079 Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attorney General Washington Square Buildi ng 2nd Av enue N orth Nashvill e, TN 37201

ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L . SMI TH, J UDGE- 2
- ORDER
On May 4, 1993 , Appellant Ga ry Dewayn e Donald pleaded gui lty i n the Davidson Coun ty Crim inal Cour t to second degr ee murder. He waivedthe sentencing range pursuant t o State v. M ahler , 735 S.W .2d 226 (Te nn. 1987). Appellant

was sentenced as a Ran ge I standard o ffender to fifty years incarcerat ion with the TennesseeDepartment of Corr ection. On ap peal, he presen ts the following issue for o ur review: whethe r the trial court err ed i n dismissingAppellant's petition for the writ of habeas co rpus or post-co nvicti on relief. After

a review of

the record, we affirm the judg ment of the trial cou rt pursuant to Cour

t of Cri minal Appeals Rule20. On March 12, 199 7, A ppel lant fil ed his pro sepetiti on for wri t of habeas corpus or, in the alternat ive, post-convict ion reli ef in the Da vidson C ounty Crimina l Court. The trial co urt dism issed the petition witho ut a hearing on May 15, 1997. Both i n his peti tion and on appeal , Appellant alleges t he following: (1) App ell ant's gui lty pl ea was not entere d knowingly an d voluntarily; (2) Ap pellan t receive d ineffe ctive as sistan ce of c ouns el; ( 3) Appe llant ag reed to an il legal sentence not permit ted by Tenn. Code Ann. § 40-35-112, as that sect ion does not allow a defen dant to be senten ced to fifty years inca rceration with 30 percent rel ease eligi bilit y; and (4) T he trialcourt misappl ied certai n enhancement and mitigating factors. In Tenn essee , it is well- settled law tha t the rem edy of h abea s corp us is limitedboth in sc ope an d 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 avail able only wher e the judgment i s void or t he term of impri sonment has expired. Passa rella v. State , 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ).1 Accor ding to his b rief Appe llant is incarce rated in La ke Co unty Reg ional corre ctional fac ility locatedat

Tiptonvi lle, Tennessee. - 3
- The habeas petiti oner bears the bur den of demonstrat ing bya preponderance of t he evidence that the j udgment of convi ction i s void or t hat his term of confinementhas exp ired. Id. Ifthe petitioner establ ishes by a preponderance of the evidence ei ther that his convi ction is void o r that his term of confi nement has expired, he can obtain im media te release
. Warren v. State , 740 S.W.2d 427, 428 (Tenn. C rim. App. 198 6). Appe llant’s compl aint would at most make his conviction and sentence voidable, not void . Furthe rmor e, he n eglec ted to file his pe titio n in the most convenient

court to his pl ace of confi nement as require d by Tenn. Code Ann. § 29-21-105. 1 See G ouldin v. S tate , C.C.A. No. 0 2C01-9 605-CR -0 0145, Shelby Coun ty (Tenn. Crim . App., Jacks on, Fe bruar y 27, 19 97). H ence , the pe tition fails to qualify as warr

anting a writ of

habeas corpus. Alternatively, were we to tr eat this petiti on as one for post-convict ion relief, it is barred by t he statute of lim itations. Prio r to the ado ption of the recent P ostConvicti on Procedure Act, petiti ons like t he present one had to be filed with in three years of the date of t he fina l a ction of the highest s tate app ellate cou rt to which an a ppeal was ta ken. Tenn . Code An n. § 40-30-10 2 (1995, Re pl.). According ly, Appellant's statute o f limitations for t he fili ng of a petition for postconvicti on relief

began to run on M ay 4, 1993 and expired three years l ater on M ay 4, 1 996. However, t he new Post-Conviction Procedure Act , which to ok effecton May 10, 1995, subs equen tly shortened the three-year st atute of limitations to one year. Tenn. Code Ann. § 40-30-201 et se q . (Supp. 1996 ). When the new Act took ef fect, t he previousthree-year statute of limi tations had not expired for Appell ant. Because t he three-yea r statute of limitations had not- 4
- expired, Appe llant's right to petition for post-convi ction rel ief survived under t he
new Act. Accord ingly, Appellant had one year fr om the effect ive date of the new Act --May10, 199 5--in which to file for post-c onviction re lief. Albert H olston v
. State , C.C.A. No. 02C01-9609- CR-00 2 98, She lby Cou nty (Ten n. Crim. A pp., Jackson. July 28, 19 97). Appell ant fil ed his peti tion on Marc h 12, 1997, appro ximate ly ten mo nths after th e expiration of the one -year per iod. W e conclude that

the t ria l cou rt p roperly d ismi ssed t he Ma rch 12, 1997 petiti on as being barred by the statute of limitat ions. With respect to

Appellant' s third andfourth al legations , we need only poi nt out that in a post-convi ction or habeas corpus proceeding, thi s C ourt do es not review a s entenc e. State v. Bryant , 805 S.W .2d 762, 763 (Tenn. 199 1). According ly, we affirm the tr ial court 's judgment pur suant to Court

of Crimina l Appea ls Rule 2 0.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE