### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 2000 Session DANIEL BENSON TAYLOR v. JAC K MORGAN, Warden Appeal from the Circuit Court for Hickman County No. 98-5073C-I Donald P. Harris, Judge

No. M1999-01416-CCA-R3-PC - Filed August 31, 2000

The Defendant was convicted by a S helb y County jury for the offense of second degree murder committed on September 20, 19 80. The trial cour t sentenced him

to life imprisonment on October 6, 1982. His conviction and sentence were affirmed by this Court on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The Defendant filed a petition for habeas corpus relief, which the

trial court d

is missed. The Defendant now appeals from the trial court’s denial of habeas corpus relief, c ontending that he

should have been sentenced under the Tennessee Criminal Sentencing Reform Act of 1982, under which he argues he would have received a lesser pen alt y. We hold that the trial court properly denied habeas corpus relief and affirm the judgment of the trial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.
D AVID H. W E LLES , J., delivered the opinion of the court, in which J ERRY L. S MITH , J. and J OHN E VERETT W ILLI

AMS , J., joined. John E. Herbison, Nashville, Tennessee, for the appellant, Daniel Benson Taylor.
Mich a el E. Moore, Solicitor General; Lu

cian D. Geise, As sistant Attorney General; Ron Dav

is, District Attorney General; Lucian D. Geise , Assistant District Attorney General, for t he appellee, Jack Morgan, Warden.
OPINION
This is an appeal from the trial court’s denial of habeas corpus relief. The procedural history of this case, which is pertinent to its disposition, is a

s follows: On Octobe

r 6, 1982, a Shelby

County jury convicted the Defen dant, D aniel Benson Taylor, of second degree murder committed on September

20, 1980 and sente

nced him to

life imprisonment.

On direct appeal, this Court affirmed1 See State v. Taylor , 668 S.W .2d 681 (Tenn. C rim. App. 1 984). -2- the judgment of

the trial court, and the Tennessee Supreme Court subsequently denied permission to appeal. 1
The Defendant subsequently filed a pro se petition for writ of habeas corpus, w

hic h wa s dismissed by the

trial court on January 19, 1999. The Defendant appe

aled to this Court. O

n August 20, 1999, this Court affirmed the trial court’s dismissal of the Defendant’s petition for writ of habeas corpus in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. T

his Courtthen initially

denied the Defe

ndant’s petition fo

r rehearing,

but subsequently

vacated its Rule 20 order and appointed c ounsel to represent the Defendant on appeal. We now consider the Defendant’s ap

peal from the tria

l court’s dismissal o

f his petition for w

rit of habeas cor

pus. The question presented for our consideration is which of two apparently conflicting statutes is applicable to the Defendant’s case. As previously stated, the offe

nse in this case

was committed on September 20, 1980, and the Defendant was sentenced on October 6, 1982. On July 1, 1982, subsequent

to the offense and prior to sentencing, the Tennessee Criminal Sentencing Reform Act of 1982 became e

ffective. I

t provided, in pert

inent part,
All person

s who co mmit cr imes on or afte r Ju ly 1, 1982, shall be tried and sentenced under this chapte

r. For all persons who committed crimes prior to July 1, 1982, the p ri or law shall apply and remain in full f

orce and effe

ct in every

respect, including but not limited to sentencing, parole and probation.
Tenn. Code Ann. § 40-35-112(a) (1982) (repealed 1989). On the basis of this statute, the trial court sentenced the Defendant under pre-1982 law. However, the Defendant argues that former Tennessee Code Annotated § 39-1-105 should have g overned his sente

nce. This statute,

entitled, “Repea

led or amended la

ws — Applic ation i n prosecution for o

ffense,” provid

es as follows:
Whenever

any penal s

tatute or penal le

gislative act of

the state is repealed or amended by a subsequent legislative act, any offense, as defined by suc h statute or act being repealed

or amended, committed while such statute or act was in full force and effect shall be prosecuted under such act or statute in effect at the time of the commission of the offense. I n the event the sub sequent act p rovides for a

lesser penalty, any punishment imposed shall be in accorda nce with the subsequent act.
Id.§ 39-1-105 (1982) (repealed 1989). The Defendant thus contends that he should have been sentenced under the Sentencing Reform Act of 1982, under which he claims he would have received a lesser sentence.2 The crime i n this case occur

red in Shel

by County,

and the Def

endant was

sentenced by a Sh elby Coun ty Criminal C ourt. -3- As a preliminary

matter, we must first determine whether the Defendant’s petition properly alleges grounds upon which habeas corpus relief ma

y be gran ted. The remedy

of habeas corpu

s is very limited in our state. The writ will issue only when a convicting court was without jurisdiction or authority to sentence a defendant or when a defendant’s term of imprisonment has expired. Taylor v. Morgan , 909 S.W.2d 17, 19 (Tenn. Cri m. A pp. 199 5). The wri t re ache s ju ris dic tio nal erro r on ly, or in other words, void, not voidable, judgments. Archer v. State, 851 S.W.2d 157, 163-64 (Tenn. 1993). “A void judgment i s one in which the ju

dgement is faci

ally invalid

because the court lacked jurisdiction or authority

to render the judg

ment or because t

h e de fendant’s sentence has expired.” Taylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999). The petitioner in a habeas corpus proceeding bears the burden of showing

by a prepon

derance of the

evid ence th at the conviction is void or that the prison term has expired. Passerella v. Stat e , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
In contrast to a habeas corpus proceeding, a second pr ocedural avenue available for challenging a conviction or sentence which has become final is a post-con viction pr oceeding. A p etition f or post-convictio

n relief is the app

ropriate means f

or attacking a v

oidable judgmen

t. Taylor , 995 S.W.2d at 83. A void able conviction or

sente nce is defined as “one which is f acially valid and requ ires introd uction of proof be yond the fa

ce of the recor

d or judgment to es

tablish its invalidity.” Id. However, a post-conviction proceeding mus

t be brought in a ti

mely manner, or it is barred by the applicable statute of limitations. See Tenn. Code Ann. § 40-30-202. Having thoroughly

reviewed the re

cord in this

case, we conclude that the Defendant has not presented proper grounds for

habeas corpus relief. The trial court that sentenced the Defendant had jurisdiction over both the offe nse and the Defe

ndant. 2 Furthermore, the sentenc e which the Defendant

received has not expired. Because the Defe ndant has not demonstrated that his conviction is void or that his sentence has expired, he has not demonstrated proper grounds for habeas corpus relief. See Taylor , 909 S.W.2d at 19. Nonetheless,

the Defendant c

ontends that he re

ceived an illeg

al sentence bec

ause he should have been sentenced

under the Criminal

Se nten cing Reform Act

of 1982, and we wil

l address his argument. In doing so, we must determine which of the two statutes previously cited controls. To make such a determination, we are guid ed b y rules of statutory construction. Ge

nerally, “ [a]s a matter of statutory construction, a specific statutory provision will control over a more general provision.” State v. Cauthern , 967 S.W.2d 726, 735 (Tenn. 1998). “[A] statute treating [a] subject i n a more general manner should not be considered as intended to affect [a] more particular provision.” Cole v. State , 539 S.W.2d 46, 50 (Tenn. Crim. App. 1976). Moreover, as between two conflicting statutes enacted at different points in time, [s]ince the more recent statute is a later expression of the legislative intent, . . . the latere nact men t wi ll n orm all y con tro l. In suc h a ca se, the new er s tat ute may b e regarded as creating an exception to, or qualification of, the prior statute. However,-4-

where there is no clear

intention to the con

trary, a sp

ecific statute will not be controlled or n ull ifi ed b y a general one, regardless of the priority of t

heir enactment.
82 C.J.S. Statutes § 354 (1999).
In this case, Tennessee Code Annotated § 39-1-105, cited by

the Defendant in

support of his contention that he should have been sentenced under the 1982 Sentencing Reform Act, was part of our criminal code under both the 1982 Sentencing Reform Act and pre-1982 law. It was repealed in 1989. In contrast, Tennessee Code Annotated § 40-35-112 was enacted in 1982 withthe passage of the 1982 Sentencin

g Reform Act. F

urthermore, we

notethat th e language of Tennessee Code Annota ted § 40-35-112(a),

the newer statute

, is more specific

than that of Tenne

ssee Code Annotat

e d § 39-1-105, which, by its very terms, applies when “ any penal statute or any

penal legislativeact of the state is repealed or amended by a subsequent legislative ac t.” Tenn. Code A nn. § 39-1-105 (1982) (repealed 1989) (emphasis added).
Because of the more specific nature of Tennessee Code Annotated § 40-35-112 an d its subsequent

enactment, we c

onclude that Tenn

esse e Code Annotated § 40-35 -112 should control over Tennessee Code Ann otated § 39-1-105 in this case. We therefore conclude that the sentence the Defendant

received was not illegal : The trial judge correctly concluded that the Defenda nt was properly sentenced under

pre-1982 law. We t

hus affirm the tri

al court’s denia

l of habeas corpus relief. Accordingly, the judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE