### FILED June 22, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE APRIL SESSION, 1999
JOSHUA DEA N FORD, ) C.C.A. NO. 03C01-9810- CR-00378 ) Appellee, ) ) ) SULLIVAN COUNTY VS. ) ) HON. PHYLLIS H.MILLER STATE OF TENNESSEE, ) JUDGE ) Appe llant. ) (Petiti on for Writ of Habeas Corpus)

FOR THE APPELLANT : FOR THE APPELLEE : JOSHUA DEAN FORD JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter NECC Annex, P. O. Box 5000 Mountain City , TN 37683 ELLEN H. POLLACK Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 GREELEY WELLES Distri ct Attor ney General Sullivan Co. Justice Center Blountvi lle, TN 37617
ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L . SMI TH, J UDGE-2- 

## ORDER

The petiti oner, Joshua Dean Ford, appea ls the orde r of the Su llivan Cou nty Criminal Court dismissing hi s petiti on for wri t of habeas corpus. The petit ioner is presently serv ing consec utive sentences of nine ( 9) years for the offense of vehicular

homicide and one (1) yea r for the offens e of failu re to ap pear. In his pro sepetiti on for

wri t of habe as c orp us, he c lai ms that his conviction for failure to appear is void, and the sentencehe rece ived for that c onviction is illegal. The trialcourt summarily di smissed the petiti on without app ointment of counsel. Af ter a thoroug h review o f the record before th is Court, we aff irm the trial cou rt’s judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. It is well -establi shed that habeas corpus rel ief isav ailable only if “‘it ap pears upon the face of the judgment or

the record of

the proceedi ng s upo n which the judgm ent is rend ered,’ that a convi cting cour t was without

jurisdi ction
or authorit

y to sentence a defendant, o r that a defendant’s sentence o f imprisonmentor other r estraint has expired.” Archer v. State , 851 S.W.2d 157, 164 (Tenn. 199 3)(citation omitted in origina l). The habea s petitioner bears the burden of demonstrati ng by a preponderance of the evidence t hat the ju dgment of convic tion is void or that his term of confine ment h as expire d. Passarella v. State , 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ). The petitioner d oes no t challeng e the lega lity of his conv iction forvehicular homicide, nor do es he asse rt that his nine (9) year sentence for that convi ction has expire d. He m erely c laims that his convi ction fo r fail ure to appear i s void. Howeve r, “the only

relief that can be gi ven a prisoner in a state ha beas cor pus proceeding is release.” State v. Warren , 740 S.W.2d 427, 428 (Tenn. Crim. App.-3-

1986). The petiti oner’s sent ences for vehi cular homici de and fail ur e to appear were ordered to r un consecutively. Theref ore, ev en if the pe titioner c ould demo nstrate that his

convicti on for fai lure t o app ear is void, he woul d not be entitl ed to imm ediate releas e until he can demonstrate t hat this convicti on is the
s ole b asis for his detent ion. Sincethe petit ioner is in the custody of the Tennessee Department of Correcti on for his vehicular homicide convi ction, t he petition i s premature and fails to qualify as warranting a wri t of habeas corpus. Because the petit ion fail ed to s ta te a claim which w ould en title him to habeas corpus relief, the trialcourt properly di smiss ed the petition. See Tenn. Code Ann. § 2 9-21-10 9. Acco rdingly, we affirm the ju dgme nt of th e tr ial court pursuantto Rule 20 of t he Tennessee Court of Cri minal Appeal s. Costs of the appeal will be paid by the State of Tennessee asit appears that the petition er is indigent.

____________________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ NORMA MCGEE OGLE, JUDGE