### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Jun e 9, 200 4 TIMOT HY J. TA YLO R v. KEV IN M YER S, Warden
Direc t Appeal from the Circ uit Court for Wayne County

No. 13151 Robert

Hollow ay, Judge

No. M2003- 02754-CCA -R3-HC - F iled Jun e 22, 2004

The de fendant was convicted in 1998 of a series of felonies, r ece iving an eff ective se ntence of five y ear s and six m o n t h s . He wa s rele ased on pa role in 1999, and his par ole was r evoked in 2002, resulting in his reincar cer ation. Subsequently , he filed a petition for writ of ha

beas c orpus, asserting that his five-y ear -six -month sentence had expired. The post-c onviction court dismissed the petition; a nd , f oll ow ing ou r r e vie w, we a ff ir m th e dis mis sa l. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed
A L AN E. G L EN N , J ., delivere d the opi nion of the court, in which J ER R Y L. S MI TH and J OE G. R I L EY , J J ., joined. TimothyJ . Tay lor, CCA/S CCF, Clifton, Tennessee , Pro Se. Paul G. Summers, Attorney Gene ral an d R eporter; and He lena Walton Yar broug h, Assistant Attorney Gene ral, for

the appe llee, State of Te nnessee .

OP IN ION
F AC TS
The petitioner was sentenc ed, in A pril 1998, to e ighte en months for his conviction for fe lony esca pe, to be serve d consec utively to his sentences f

or auto burg lary

and thre e counts of f

org ery , for which he r ece iv ed co n cu rr en t two-y ear sentenc es. In September 1998, he was c onvicted of the ft be tw e e n $ 10 ,0 00 a nd$6 0, 00 0 a ndse nte nc e d to fiv e y e ars a nd six month s to be se rv e d c on c ur re ntl y with his previous sentence s. The petitioner w as re lease d from conf inement on November

3, 1999, and a pa role violation war

rant wa s issued on O ct o b er 16, 2002. His parole w as re voked on November 19, 2002. On J uly 29, 2003, he filed a pro s e petition f or writ of habe as cor

pus, claiming that his sentence s had expired. The post-c onviction court dismissed th e p et i t i o n , and this appea l followed.-2- AN AL YSI S
I t is we ll- e sta

bli sh e d inTe nn e sse e that th e re me dy pr ov ide d b y

a writ o f h abe a s c or

pu s is limit ed in scope and may only be invoked where the judg ment is void or the petitioner’s term of imp ri so nme nt ha s expir e d. State v. Ritc hie , 20 S.W.3 d 624 , 629 (T e nn . 2 00 0) ; State v. Da ve np ort, 980 S.W .2d 407, 409 (Tenn. Crim. App. 1998)

. A v o i d, as opposed to a voida ble, judg ment has been de fi n ed by

our supre me court as “one in which the judg ment is facia lly invalid because the court did not have the statutory authority to rende r such judg ment.” Dy kes v. Compton, 978 S.W .2d 528, 529 (Tenn. 1998) ; see a lso Tay lor v. State, 995 S.W .2d 78, 83 (Tenn. 1999). The judg ment of a c ou rt of g e ne ra l ju ri sd ic tio n is c on c lus ive a ndpr e su me d to be va lid , a nd su c h a jud g me nt c a n o nly be im p ea ch ed if the re cord a ffirmatively shows that the re ndering court wa s without personal or subject matter jurisdiction. Archer v. State, 851 S.W

. 2 d 157, 162 (Tenn. 1993) . Thus, habea s corpus r elief is available only when “ ‘it appea

rs upon the face of

the judg ment or the re cord of the proce eding s upon which t he judgment i s rende red’ that a convic ting c ourt was without jurisdiction or authority

to sentenc e a defe ndant, or that a defe ndant’s sente nce of

imprisonment . . . has expi red.” I d. at 164 (c itation omit ted).
To obtain habe as cor

pus relief , the petitioner must show by a pre ponderance of the evidenc e that his sentence i s void and not mere ly voidable. See D avenport, 980 S.W .2d at 409. Consequently , a petiti oner cannot collaterally attack a facially valid judgme nt of t he trial c ourt in a p et i t i o n fo r h ab ea s co rp u s re l i ef

. Ar ch er , 8 5 1 S

. W

. 2 d at1 6 2

. T h e p ro p erm ea n s o f c h al l en gi n g a fac ially valid judgme nt based on a const itutional viol ation is a petition for post-convic tion relief. L ewis v. Metro. G en. Sessions Court f or Nashville, 949 S.W.2d 696, 699 (Tenn. Crim. App. 1996); Fr edric k v. State, 906 S.W .2d 927, 929 (Tenn. Crim. App. 1993)

. The pe titioner’s arg ument, as explained in his brief, is that at his November 19, 2002, revoc ation hearing, “ the B oard in its writt en s t at em en t never made any

determination to take any time from [the pe titioner].” Further , acc ording to his brief, “the Gene ral Sessions Court of Murfre esboro, Te nnessee , enter ed into an agr eed Order ‘re tiring’ the t rig g ering offe nse in which the B oa rdus e d a s caus e fo r the [sic ] vio la tin g [the pe tit ion e r’ s] pa ro le .” Th us , b y

his vie w, “ his sentenc es have fully

expired.” The State disputes the se claims, asserting that “ [a] s ref lected in the a ff ida vit su bmi tte d b y

Rob e rt a An de rs on , Se nte nc e Ma na g e me nt S up e rv iso r, the[Par ole ] B oa rddid indeed vote to de ny

pet i t i o n er credit for the time while out on par ole. Consequently , petitioner’s sentenc e has not fully

expired.”
I n making his arg uments, the petitioner re lies on a parole boar d form sty led “Notice of B oard Action Revocation/Tim e S et t i ng /Post Parole Resc ission Hearing ,” the ha ndwritten notations on which, as the State notes, are virtually illegible. Howeve r, one of t he ex hibits attache d to the petition is a document dated April 8, 2003, and sty led “Tomis Offe nder Sente nce L etter” which sets out the fo llo wing inf

orma tio n a s to the pe tit ion e r’ s se nte nc e : “ Expi ratio n D a te : 10 /30 /20 05 ” a nd“ F ull Ex piration Date : 03/19/2006.” T he post-convic tion court dismissed the petition and we conc lude that the record supports this action, given that the record shows that the petitioner’s se ntence s have not expi red.-3- CO NC LU SION
B a se d u po n th e fo reg oi ng aut ho ri tie s a ndre a so nin g , w e a ff ir m th e or de r o f the po stconviction court dismi ssing the pe tition.

___________________________________ ALAN E. GL

ENN, JUDGE