FILED

June 22, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1999

JOSHUA DEAN FORD, ) C.C.A. NO. 03C01-9810-CR-00378

)

Appellee, )

)

) SULLIVAN COUNTY

VS. )

) HON. PHYLLIS H. MILLER

STATE OF TENNESSEE, ) JUDGE

)

Appellant. ) (Petition for Writ of Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

JOSHUA DEAN FORD JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

NECC Annex, P. O. Box 5000

Mountain City, TN 37683 ELLEN H. POLLACK

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

GREELEY WELLES

District Attorney General

Sullivan Co. Justice Center

Blountville, TN 37617

ORDER FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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ORDER

The petitioner, Joshua Dean Ford, appeals the order of the Sullivan County

Criminal Court dismissing his petition for writ of habeas corpus. The petitioner

is presently serving consecutive sentences of nine (9) years for the offense of

vehicular homicide and one (1) year for the offense of failure to appear. In his

pro se petition for writ of habeas corpus, he claims that his conviction for failure

to appear is void, and the sentence he received for that conviction is illegal. The

trial court summarily dismissed the petition without appointment of counsel. After

a thorough review of the record before this Court, we affirm the trial court’s

judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

It is well-established that 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 habeas petitioner bears the

burden of demonstrating by a preponderance of the evidence that the judgment

of convic tion is void or that his term of confinement has expired. Passarella v.

State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The petitioner does not challenge the legality of his conviction for vehicular

homicide, nor does he assert that his nine (9) year sentence for that conviction

has expired. He m erely claims that his conviction for failure to appear is void.

However, “the only relief that can be given a prisoner in a state habeas corpus

proceeding is release.” State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App.
-3-

1986). The petitioner’s sentences for vehicular homicide and failure to appear

were ordered to run consecutively. Therefore, even if the petitioner could

demonstrate that his conviction for failure to appear is void, he would not be

entitled to immediate release until he can demonstrate that this conviction is the

sole basis for his detention. Since the petitioner is in the custody of the

Tennessee Department of Correction for his vehicular homicide conviction, the

petition is premature and fails to qualify as warranting a writ of habeas corpus.

Because the petition failed to state a claim which would entitle him to

habeas corpus relief, the trial court properly dismissed the petition. See Tenn.

Code Ann. § 29-21-109. Accordingly, we affirm the judgment of the trial court

pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. Costs of the

appeal will be paid by the State of Tennessee as it appears that the petitioner is

indigent.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

NORMA MCGEE OGLE, JUDGE