# FILED

Au gust 21, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON

JIMMY LLOYD McC URRY, ) ) Petitioner, ) C. C. A . NO. 02C01-9 706-CC-00201 ) vs. ) LA KE COUNTY ) STA TE OF TENN ESSEE, ) No. 97-7624 ) Respondent. )

O R D E R

This matter is before th e Court upon the state’s mot ion, pursuant to Rule 20, Rules of the Court of Criminal Appeals, to aff irm the judgment of the trial court in this case by

order rather

than formal opinion . The above-c aptioned case represents an appeal from the tri al court’s dismissal of the petitioner’s petition for w rit of habeas corpus. The rec ord was fil ed on June 3, 1997, and the petitioner filed his bri ef on June 18, 1997.

The indictment conta ined in the rec ord before the Cour t reflects that the peti tion er was or igi nall y c harg ed w ith one c ount of fel ony

murd er i n theper petr

atio n of a robbery and one count of robbery. The record also contains a judgmen t sheet which indi cate s th at th e pet iti oner was conv ict ed of firs t deg ree murd er a nd se nten ced t o li fe imprisonment. Bef ore a verdict was rendered in the case, however, the trial court granted the s tate's motion for a nolle proseq ui on the felony murder count of the indictment. As

the trial c ourt noted at the h earing on thepetitioner' s petition for po stconvicti on relief in 1987, the case w as then submitted t o the jury on the charg e of premeditated firs t degree murder and the lesser

included gr

ades of homicide.
Although the indictment cha rging the petitioner with premeditated first degree murder

is not incl uded in the recor d, the record clearly

reflects that t he petitioner was convicted of first degree murder. The p etitioner even acknowledges this fact in his2

peti tion for a writ of habe as co rpus : "Pe titio ner a nd co -def end ant . . . were indic ted b y a Cocke County

Grand Jury

AT Newport , Tennessee of Firs t Degree M urder/Robbery on Case Number 4219. . . . Petiti oner was found g uilty of Fi rst Degree Murder by jury tr ial on February

1, 1985 in CaseNumber 4219."
The petitioner bas es his presen t challenge to the judgment o n an order entered by the trial court amending an alleged clerical error in the m inutes. However, as the trial court noted in the hearing on the petition for post-conv iction rel ief, the minutes corre ctly state that the felony murder charg e was dis missed pursuant to the state's motion t o nolle proseq ui, and that the c ase was pr operly su bmitted to the jur y on the charge of premeditated first deg ree murder. The c ourt found there was no reason to amend the minutes and suggested that the order amending the minut es was mistakenly

entered.
The petitioner i n the present cas e has not show n upon the face of the judgment or th e record of the pr oceedings upon which the judgment w as rendered that the convic

ting court

was w ithout juri sdiction or authority

to sentence the pet itioner or that the petitio ner’s sentenc e of imprisonment or other restr

aint has exp ired. See State v. Archer , 851 S.W.2d 157, 164 (Tenn. 1993). The conv icting c ourt in this case had jurisdiction over both the subject matte r and person, and the judgme nt sheet clearly reflects that thepetitioner w as sentenced to l ife imprisonment. The sentence has not expired and the court below , therefore, cor rectly denied the petiti oner the req uested habe as c orpu s re lie f.

Accordingly, having reviewed the entire record in light of the petitioner’s claims, w e cannot find any error committ ed by the tr ial court i n dismissing the petition. It is therefore ORDERED th at the state’s motion is gr anted. Pursuant

to Rul e 20 of t he Rules of th e C ou rt o f C rimina l A pp ea ls, w e af firm th e trial c ou rt’s dism

iss al o f th e pe tition er ’s p et ition fo r w rit o f habeas corpus.3 It i s FUR TH ER O RD ER ED, upon r evi ewing t he enti re r ecord bef ore t hi s Court , and fin d in g , c o n s is ten t w ith th e tr ial ju d g e 's ru lin g d u rin g th e h e a rin g o n th e p e titio n for p o s t-c o n v ic tio n re lie f i n thi s m att er, that the minutes f or Case Num bers 4211, 4218 and 42 19 in t he C i rcui t Court

for Cocke Cou nty, Tenn

essee, at Newp

ort , Fri day, February 1, 1985, corr ectl y ref l ect t hat Case Num bers 4211 and 42 18 w ere dism iss ed pu rsu an t to th e s tate 's m otio n fo r n olle p ros eq ui, a nd tha t C as e N um be r 4 21 9 w as pr op er ly s ub m itted to th e jury u po n w hic h a co nv iction fo r firs

t deg re e m ur de r w as re tu rn ed a s r ef lec te d i n the j udgm

ent f or Case Num

ber 4219. Iti s FUR

TH ER O RD ER ED thatthe or der ent ered on Novem ber 21, 1985, i n Ca

se Num bers 4211, 4218 and 42 19, i n the Cir cui t Court for Cocke County has no eff ect
u p o n th e ju d g m e n t e n te re d a gain s t th e p e titio n e r. T h e C le rk o f this C o u rt s h a ll forw

a rd a c op y o f this order t o the Cler k of t he C

i rcui t Court

for Cocke County t o be incl uded in t he record ofthe aboveref erenced cases.

Enter, this t he ___ day of Aug ust, 1997.

___________________________ PAUL G. SUMM ERS, JUDGE

___________________________ JOE B. JONES, PRESIDING JUDGE

___________________________ DAVID G. HA

YES, JUDG E