### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE

JONATHAN THORN TON v. STATE OF T ENNESSEE Appeal from the Criminal Court for Greene C ounty No. 00-CR-167C James Edward Beckner, Judge

No. E2 003-0 0393- CCA-R8 -PC March 17, 2003
The petitione

r, Jonatha n Thornto n, appea

ls the trial court's denial of his petition for habeas corpus relief, alleging that the sentence impos ed by this court on direct appe al is illegal. Because the sentence imposed by

this court upon direct appeal is in direct contravention of a statute, the judgment of the trial court is reversed and the petitioner's sentenc e is modified. With regard t o the p etit ioner 's felony convicti on , w e m od if

y t he sentence to a term of split confinement, with 7.2 months to be served in the local jail and the balance to be served on probation. The sentence for the misdemeanor sentence remains the same, 11 months and 29 day s with thirt

y pe rcent to be served in confinement. Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Rem anded
G ARY R. W ADE , P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBER T W. W EDEMEYER , JJ., joined.
Herbert S. Moncier and David S. Wigler, Knoxville, Te nne ssee, for the appellant, Jonathan Thornton.
Paul G. Summers , Assistant Attorney Gene ral; andCecil C. Mills, Jr., Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION
The petitioner, Jonathan T hornton, has appealed the trial court's denial of his petition for habeas corpus relief. He argues that bec ause the sentence imposed by t his court on direc t appeal

is illega l, he is entitled to release. Because the sente nce imposed upon direct

appeal is, in fact, in direct contravention of a

statute, the judgment

of the tri al court

is rever sed and th

e petitioner's se

ntence i s modified. As to the petitioner's felony conviction, the se ntence i s modified to a term o f split confine ment, with 7.2 months to be servedin the local jail and the balance to be served on probation. The sentence for

his misdemeanor

th ef t s ha ll re ma in as pr ev io us ly o rd er ed , 1 1 m on th s a nd 29 da ys with thirty

percen t to be ser ved in con

finemen t.-2-

In September of 2001, the petitioner was convicted of one count of theft of property va

lued at more than $1,000 but less than $10,000 and one count of theft of propert y valued at less than $500. The tria

l court imp osed concurren t sentenc es of two y

ears and 11 mo nth s and 29 da ys, re sp ec ti ve ly, to be ser

ved in confinement. See State v. Jonathan Thornton , No. E2001-02491-CCAR3-CD (Tenn. Cr

im. App., a

t Knoxville, Sept. 30, 2002) . On dire ct appea l, this court affirmed the judgment of the trial court but m odifi ed the petit ioner 's effec tive sente nce to spl it confine ment, with nine months to be served in the Department of Correction and the ba

lance to be served on probation. See id. The supreme court denied permission to appeal on Febr uary 10, 2003.
On that sa

me day , the petitioner filed a pet ition for w

rit of habeas corpus in the trialcourt, asserting that the sentenc e imposed by t his court was illeg al. He also filed a motion for reduction of his sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. The trial court denied re lief and the petitioner filed a notice of appeal pursua nt to Tennessee Rule of App ellat e Procedu re 3. The pe titioner a sserts tha t his sente

nce is illegal bec ause it wa s imposed in contravention of the requirement that sentences of split confinement be ser ved in the

lo cal jail or workhous e rather than in the D epartment of Correction. SeeTenn. Code Ann. § 40-35-306(a),- 314(a). In addition , he argues th at the sentence is illegal because the le ngth of continuous confinement

ordered exceeds that mandated under Tenne ssee Code Annotated § 40-35-501(a)(3), (c).
Ini ti al ly, TennesseeRule of Appellate Procedure 2 provides that this court may suspend the rules of Appellate Proc edure in "the interest of expediting decision upon any matter." Becau se it is our view that the petitioner is entitled to a modification of the sentence and any delay in the g

rant of relief should be avoided, the procedural rules a re suspended so as to expedite the grant of relief.
A "p er so n i mp ri so ne d o r r es tr ai ne d o f [ hi s] li be rt y, under any pr etense whatsoever, . . . may prosecu te a writ of habeas corpus, to inquire into the cause of such imprisonment . . . ." Tenn. Code Ann. § 29-21-1 01. A writ of habea s corpus, however , is availa ble only when it appea

rs on the face of the judgment or the record that the convicting court was without jurisdiction to co nvic t or sentence the defendant or that the sentence of imprisonmenthas otherwise expired. Archer v. State , 851 S.W.2d 157, 1 64 (Tenn . 1993); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992). The procedural require ments for habeas corpus relief are mandatory and must be scrupulously followed. Archer , 851 S.W.2d at 165. Our supreme court has held that a defenda ntmay obtain relief

from an illegal sentenc e by filing a pe

tition for a writ of habeas corpus. State v. Burkhart , 566 S.W.2d 87 1, 87 3 (Tenn. 1978). In Burkhart , the h igh court ruled that a sentenc e imposed

in contra vention of

a statute is illegal, a nullity and ma y be corr ected "at any time, eve n if it has becom e final." Id. A tria l jud ge has both t he po wer a

nd authori

ty to correct the s entencin g jud gment "a s soon

as the illeg ality [i s ] brought to hi s attentio n." Id.
Tenness ee Code A

nnotated section 4 0-35-306

provides , in pertin

ent part , as follo ws: A defendant receiving probation may be required to serve a portion of the sentence in continuou s confine ment for u

p to one (1 ) y ear in the local ja il o r-3-

workhouse, with proba

tion for a period of

time up to a

nd including the st

a tut ory maximum time for the class of the conviction offense.
Tenn. Code Ann. § 40-35-3 06(a). Wh en the se ntence i s less than eight y ears and a sen tence of split confinement

is ordered, the court "shall designate the place of confinement as a local jail or workhouse." Tenn. Code Ann. § 40-35-314(a).
A sentence of split confinement of nine months in the

Departm ent of Cor rection does, in f act, contraveneboth Tennessee Code Annotated sections 40-35-306 and 40-35-314. Thus, the sentence must be modified to provide that the defendant shall be housed at the local jail or workhouse, in this case the Gree ne County

Detentio n Facility. Further , it appears that the length of continuous confinement

ordered by

this court exceeds that which the defendant is required to serve pu

rsuant to Tenness ee Code A

nnotated § 40-35-5 01. That s tatute pr ovides, in pertine nt part, a s follows: (a)(3) Notwithstanding any othe r p r ovision of law, inmates with felony sentences of two (2) ye ars or less shall have the remainder of their origina l sentence suspended upon reaching their relea se eligibility date.

* * * (c) Release eligibility f

or each defendant sentenced a s a Range I sta ndard offender shall occ

ur afte r se rvice of

thirty perce

nt (30%) of the actual sentence imposed le ss sentence cre dits earn ed and re tained by the defe ndant.
Tenn. Code Ann. § 40-35-501(a)(3), (c). A sentenc e of split confinement may not be imposed whic h circumv ents the statut

ory releas e eligi

bility date. State v. Stephen Michael Ware , No. E2000-01952- CCA-R3-CD

(Tenn. Crim. App., at Knoxville, Aug. 7, 2001). In Lambert v. Morga n , No. M1999- 02321-CCA -R3-PC, this court held that a sentenceimposed in contrav ention of

the statut ory releas e eligibility date is illega

l and that the defendant so sentenced was entitled to habea s corpus relief. Here, the defendant received a sentenc e of two ye ars as a

Range I standar d offend er for h is felony convicti on. His re

lease eligibility

date would thus occur after service of thirty perce

nt, or 7.2 months, of his sentence. Due to t he nature of the crimes involved and the applicable sentencing guidelines, a period

of incar ceration is nece ssary . Thus, the de fendan t's felony sentenc e is modified to a se ntence of split confinement with 7.2 months to be served in the local jail or wor khous e concurr ently with the misdemeanor sentence and the balance to be served onprobation. The cau se is remanded for the imposition of the sentence. Costs are adjudged to the state.

___________________________________ GARY R. WADE, PRESIDING JUDGE