FILED

January 28, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

NOVEMBER SESSION, 1998

RONALD DEE WATT, ) C.C.A. NO. 03C01-9609-CR-00343

)

Appellant, )

)

) ROANE COUNTY

VS. )

) HON. E. EUGENE EBLEN

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF ROANE COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

KENNETH F. IRVINE, JR. JOHN KNOX WALKUP

606 W. Main Street, Suite 350 Attorney General and Reporter

Knoxville, TN 37901-0084

MICHAEL J. FAHEY, II

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

CHARLES E. HAWK

District Attorney General

ROGER DELP

Assistant District Attorney General

P.O. Box 703

Kingston, TN 37763

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Ronald Dee Watt, appeals as of right from the Roane

County Criminal Court’s dismissal of his petition for habeas corpus relief. The

issue on appeal is whether the trial court erred by summarily dismissing the

petition without appointing counsel or conducting an evidentiary hearing. We

reverse the order dismissing the petition and remand this case for further

proceedings.

We will first attempt to summarize, from the record before us, the events

giving rise to the Defendant’s petition for writ of habeas corpus. On April 17,

1980, the Defendant pleaded guilty to one count of armed robbery with a

sentence of ten years, two counts of concealing stolen property with a sentence

of three years on each count, and two counts of arson with a sentence of one

year on each count. All sentences were ordered to be served consecutive to

each other, for an effective sentence of eighteen years. The sentences were

ordered to be served concurrently with a sentence the Defendant was serving in

the federal penitentiary for bank robbery.

The Defendant was subsequently transferred back to federal custody for

the service of his sentences. At some point thereafter he was released on parole

from federal custody. Subsequent to being released on parole, the Defendant

was apparently charged with additional federal crimes and was returned to

federal custody. By order entered on January 16, 1992, the Criminal Court for

Roane County, Tennessee issued a capias for the arrest of the Defendant “for
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service of the portion of his sentence still owed to the Tennessee Department of

Correction.”

On May 14, 1996 the Defendant filed a petition for writ of habeas corpus

in the Criminal Court for Roane County. The petition alleged that he was an

inmate in the federal penitentiary. He alleged that he was suffering collateral

consequences from being illegally and unconstitutionally detained by virtue of the

capias issued by the Roane County Criminal Court on January 16, 1992. In

addition to his allegations of various constitutional violations, the Defendant

alleged that his Tennessee sentence was illegal and void because he was

sentenced pursuant to “an agreement between his court-appointed counsel and

attorney general that [the trial court] was powerless to order under Tenn. Code

Ann. § 39-1-703.”

The State filed a motion to dismiss the habeas corpus petition on the

grounds (1) that Tennessee Code Annotated § 29-21-102 excluded persons in

federal custody from the benefit of State proceedings for a writ of habeas corpus,

and (2) that the trial court had no authority to order the Defendant’s release from

federal custody. The trial court issued an order dismissing the petition on the

grounds that it failed to state a cause of action for which relief could be granted

because the Defendant was in federal custody and § 29-21-102 “excludes

persons in federal custody from benefit of filing writ of habeas corpus in State

proceeding . . . [and] . . . State of Tennessee has no authority to order release

from federal custody even if grounds for relief existed.” It is from this order of

dismissal that the Defendant appeals.
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The trial court dismissed the habeas corpus petition because the

Defendant is in federal custody. Tennessee’s habeas corpus law is statutory and

begins with the following provision:

Any person imprisoned or restrained of his liberty, under any

pretense whatsoever, except in cases specified in § 29-21-102, may

prosecute a writ of habeas corpus, to inquire into the cause of such

imprisonment and restraint.

Tenn. Code Ann. § 29-21-101. The exception referred to in the above section

provides as follows:

Persons committed or detained by virtue of process issued by

a court of the United States, or a judge thereof, in cases where such

judges or courts have exclusive jurisdiction under the laws of the

United States, or have acquired exclusive jurisdiction by the

commencement of suits in such courts, are not entitled to the

benefits of this writ. 

Id. § 29-21-102.

We read this statute to clearly provide that a State judge has no authority

to order the release of a person who has been committed or is being detained,

imprisoned, or restrained of his liberty by virtue of an order of a federal court. In

the petition filed herein, however, the Defendant is seeking to test the validity of

the restraint on his liberty being caused by the capias for his arrest issued by the

Criminal Court of Roane County, Tennessee. We do not believe that the

Defendant’s status as a federal prisoner deprives the Criminal Court of Roane

County of any authority to inquire into the cause of the restraint on the

Defendant’s liberty as a result of the capias for the Defendant’s arrest which was

issued by the Roane County Criminal Court in a previous order. W e therefore

conclude that the trial court was in error by summarily dismissing the habeas

corpus petition on the grounds that the Defendant was a federal prisoner.
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Although it is not entirely clear in the Defendant’s pro se habeas corpus

petition, the Defendant primarily argues that his sentence is illegal because it was

ordered to be served concurrently with a federal sentence when the law required

that the sentence be served under the control and supervision of the State of

Tennessee. At the time the Defendant was convicted of armed robbery, robbery

accomplished by the use of a deadly weapon was a Class X felony. Tenn. Code

Ann. § 39-1-702 (repealed 1989). The law provided that a sentence for a Class

X felony would “[t]erminate or expire only after service of the entire sentence, day

for day, under the control and supervision of the state of Tennessee.” Id. § 39-1-

703 (repealed 1989). The Defendant questions whether the trial judge had the

legal authority to order his sentence to run concurrently with the federal sentence

or whether he was required by the Class X felony law to order the Tennessee

sentences to be served in the state penitentiary, presumably after he was

released from federal custody.

Tennessee courts have held that when the law requires the trial court to

impose a consecutive sentence on a defendant convicted of a crime committed

while on work release, the trial court is without jurisdiction or authority to enter a

judgment against a defendant for a concurrent sentence. Henderson v. State ex

rel. Lance, 419 S.W.2d 176 (Tenn. 1967); Taylor v. Morgan, 909 S.W.2d 17, 20

(Tenn. Crim. App. 1995); see also Archer v. State, 851 S.W.2d 157, 163 (Tenn.

1993) (noting that because the trial court in Lance was without authority to render

a concurrent sentence when statutorily required to make the sentence

consecutive, the judgm ent was facially void, and a writ of habeas corpus could

issue to release Lance from his guilty plea).
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We also note that the Defendant’s effective eighteen-year sentence was

imposed on April 17, 1980. The sentence was ordered to be served concurrently

with a federal sentence. Assuming that the concurrent sentence was a legal

sentence, it becomes obvious that more than eighteen years has now passed

since the sentence was imposed. Although there may well be reasons why the

sentence has not expired, the Defendant argues on appeal that on its face it

appears that the sentence has expired.

Based on our review of the record and our understanding of the law, we do

not believe that the trial judge should have dismissed the Defendant’s petition for

habeas corpus relief without appointing counsel and allowing the Defendant the

opportunity to present his petition on the merits. If the Defendant’s eighteen-year

sentence, ordered to be served concurrently with a federal sentence, is an illegal

sentence, it is clear that the court has the authority to correct it at any time, even

if it has otherwise become final. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.

1978). An illegal sentence is a nullity. Id. If the sentence was illegal, the status

of the prosecution in Roane County would apparently return to the sentencing

stage. At that stage, further proceedings on the Defendant’s plea would be

governed by Rule 11 of the Tennessee Rules of Criminal Procedure. See Taylor

v. Morgan, 909 S.W.2d 17, 20 (Tenn. Crim. App. 1995).

We also point out that even if the Defendant can establish that he received

an illegal sentence, he may nevertheless be ineligible for habeas corpus relief.

Obviously, if the Defendant is lawfully confined under authority of a federal court

order, the Tennessee court may not order him discharged from custody. If his

sentence is illegal and thus void, he remains subject to his original pending
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charges in Roane County. If his sentence has expired, he may well remain in

lawful custody as a federal prisoner. In any event, we believe the Defendant may

proceed with his habeas corpus proceeding to determine whether his Tennessee

sentence is illegal or has expired.

The judgment of the trial court dismissing the Defendant’s habeas corpus

petition is reversed. This case is remanded to the trial court for further

proceedings.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

___________________________________

L.T. LAFFERTY, SENIOR JUDGE