# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AUGUST 1997 SESSION

JONAH L. GA NT, ) ) Appellant, ) C.C.A. No. 01C01-96 0 9-CR-0040 5 ) vs. ) Davidson C ounty ) RICKY BELL, WA RDEN and ) STA TE OF TENN ESSEE, ) Honorab le Seth Norman, Judge ) Appellees. ) (Habeas Corpus) )

FOR TH E APPEL LANT: FOR THE APPELLEE: SHAWN A. TIDW ELL JOHN KNOX WALK UP Attorney at Law Attorney Gen eral & Repor ter Cummins Station 209-10th Ave., Ste. 511 DARYL J. BRAND Nashvil le, TN 37203 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. JOH NSON III Distric t Attorney General JAMES W. MILAM Assistant

DistrictAttorney

General W ashington Square 222 Second Ave. North, Ste. 500 Nashvil le, TN 37201-1649
OPINION FILE D: ____________________
AFFIRMED CURWOOD WITT JUDGE1 The petitioner al leges his sentence was "10 to 20 year

s" for second degree murder . No judgment document appears i n the record, although the state does not con test the correctness of the petit ioner's uncor roborated statement. The petiti oner's chall enge pertaini ng to determin ate sentencing does not directly

attack his "10to 20 years " sentence.
2 The petitioner is currently incarcerated f or other sentences he received in 1985. For a pr

ocedural descr iption of the petit ioner's ear lier proce edings, see Jonah L. Gant v . State , No. 01C01-941 2-CR-00420 (Tenn. Crim. App., Nashvil le, Aug. 11, 1995), perm. app. denied (Tenn. 1995). 2 OPINION The petit ioner, Jo nah L. Gant, appeals the denial of the D avidson County Cr imina l Court's denial of his peti tion for the w rit of habeas cor pus. The petitioner

challenges the constitutionality of a sen tence which he completed serving in 1984, contending(1) the Sentencing Reform Act of 1989 and its prede cessors should be struck dow n because they violate s eparation of powers requi rements by allo wing the judicial branch to deter mine when an offender w ill first be eligibl e for parole, a power belonging to the executive branch , and (2 ) the current and past sent encing statutes v iolate the req uirement that al l sentences be of determinat e length by mandating minimum percent ages that must be served befo re parole eligibil ity accrues, al though parole may not be gr anted onc e this portion of the sentence has been served. 1 The trial court found the petitioner was not ent itled to habeas corpusrelief be cause he is not being ill egally detained as a result of the sentence of which he complains. 2 Follow ing a rev iew of the re cord, we affirm the judgment of the tr ial court.

In Tennes see, the wr it of habeas corpus is avai lable only

when th e judgmentunder attack is void or when the prisoner is held in custody after his term of imprisonment

has expired. Arch er v. State , 851 S.W .2d 157, 164 (Tenn . 1993); Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992); Rex Winf ield Heaton v. Ricky Bell , No. 01C01-9303-CC -00096, slip op. at 2 (Ten n. Crim. App., Nashvil le, Nov. 24, 1993). Standingto bring s uch an action is conferred on "[a]ny pers on imprisoned
or restr aine d of his li bert y, under any pretense whatsoever," wit h certain exceptions not pertinent here. Ten n. Code Ann. § 29-21-101 (1980).3 The appel lant complains of an allegedly void sentence. He adm its, however, he has fulfilled the terms of the sente nce. He contends he is nevertheless
a proper petitioner because any future p unishment he may earn as a resu lt of criminal activ ity ma y b e enhanced based upon hi s 1974 sentence. What the petitioner

fails to addres s, and what we find de termin ative, is that the petitioner's 1974 convicti on , not sentence , would be u sed to enhance future punis hment. See Tenn. Code Ann. §§ 40-35-106 to - 108 (1990) (establish ing enhanced puni shment categories

based on prior

convicti ons). The petiti oner has not all eged constit utional infirmity of his convi ction. Moreover, if hi s claim of a constitutionally void sentence
was found to have me rit, he wou ld be en titled o nly to a new se ntenci ng procee ding, not a setting as ide of his underl ying 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 li ber ty pursuant to that sentence, he is wi thout grounds to challenge it in habeas corpus proce edings.

The court below properly dismissed the petition, and its judgme nt is affirmed.

_______________________________ CURWOOD W ITT, JUDGE

CONCUR:

_______________________________ JOE G. RILEY

JR., JUD GE

_______________________________ JOSEPH H. WALKER, III, SPEC IAL JUDGE