FILED

September 19, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST 1997 SESSION

JONAH L. GANT, )

)

Appellant, ) C.C.A.No. 01C01-9609-CR-00405

)

vs. ) Davidson County

)

RICKY BELL, WARDEN and )

STATE OF TENNESSEE, ) Honorable Seth Norman, Judge

)

Appellees. ) (Habeas Corpus)

)

FOR THE APPELLANT: FOR THE APPELLEE:

SHAWN A. TIDWELL JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

Cummins Station

209-10th Ave., Ste. 511 DARYL J. BRAND

Nashville, TN 37203 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

VICTOR S. JOHNSON III

District Attorney General

JAMES W. MILAM

Assistant District Attorney General

Washington Square

222 Second Ave. North, Ste. 500

Nashville, TN 37201-1649

OPINION FILED: ____________________

AFFIRMED 

CURWOOD WITT 

JUDGE
1The petitioner alleges his sentence was "10 to 20 years" for second

degree murder. No judgment document appears in the record, although the

state does not contest the correctness of the petitioner's uncorroborated

statement. The petitioner's challenge pertaining to determinate sentencing does

not directly attack his "10 to 20 years" sentence.

2The petitioner is currently incarcerated for other sentences he received in

1985. For a procedural description of the petitioner's earlier proceedings, see

Jonah L. Gant v. State, No. 01C01-9412-CR-00420 (Tenn. Crim. App., Nashville,

Aug. 11, 1995), perm. app. denied (Tenn. 1995).

2

OPINION

The petitioner, Jonah L. Gant, appeals the denial of the Davidson

County Criminal Court's denial of his petition for the writ of habeas corpus. The

petitioner challenges the constitutionality of a sentence which he completed serving

in 1984, contending (1) the Sentencing Reform Act of 1989 and its predecessors

should be struck down because they violate separation of powers requirements by

allowing the judicial branch to determine when an offender will first be eligible for

parole, a power belonging to the executive branch, and (2) the current and past

sentencing statutes violate the requirement that all sentences be of determinate

length by mandating minimum percentages that must be served before parole

eligibility accrues, although parole may not be granted once this portion of the

sentence has been served.1 The trial court found the petitioner was not entitled to

habeas corpus relief because he is not being illegally detained as a result of the

sentence of which he complains.2 Following a review of the record, we affirm the

judgment of the trial court.

In Tennessee, the writ of habeas corpus is available only when the

judgment under attack is void or when the prisoner is held in custody after his term

of imprisonment has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993);

Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); Rex Winfield Heaton v. Ricky Bell,

No. 01C01-9303-CC-00096, slip op. at 2 (Tenn. Crim. App., Nashville, Nov. 24,

1993). Standing to bring such an action is conferred on "[a]ny person imprisoned

or restrained of his liberty, under any pretense whatsoever," with certain exceptions

not pertinent here. Tenn. Code Ann. § 29-21-101 (1980).
3

The appellant complains of an allegedly void sentence. He admits,

however, he has fulfilled the terms of the sentence. He contends he is nevertheless

a proper petitioner because any future punishment he may earn as a result of

criminal activity may be enhanced based upon his 1974 sentence. What the

petitioner fails to address, and what we find determinative, is that the petitioner's

1974 conviction, not sentence, would be used to enhance future punishment. See

Tenn. Code Ann. §§ 40-35-106 to -108 (1990) (establishing enhanced punishment

categories based on prior convictions). The petitioner has not alleged constitutional

infirmity of his conviction. Moreover, if his claim of a constitutionally void sentence

was found to have merit, he would be entitled only to a new sentencing proceeding,

not a setting aside of his underlying conviction. See State v. Williams, 575 S.W.2d

948, 949-50 (Tenn. 1978). Because the petitioner has fully satisfied his sentence

and is no longer restrained of his liberty pursuant to that sentence, he is without

grounds to challenge it in habeas corpus proceedings.

The court below properly dismissed the petition, and its judgment is

affirmed.

_______________________________

CURWOOD WITT, JUDGE

CONCUR:

_______________________________

JOE G. RILEY JR., JUDGE

_______________________________

JOSEPH H. WALKER, III, SPECIAL JUDGE