State v. John Justice ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1997
FILED
JOHN EDGAR JUSTICE, JR., ) December 30, 1997
) No. 02C01-9612-CC-00448
Appellant ) Cecil Crowson, Jr.
) LAUDERDALE COUNTY Appellate C ourt Clerk
vs. )
) Hon. Joseph H. Walker, Judge
JIMMY HARRISON, Warden, )
and STATE OF TENNESSEE, )
) (Petition For Writ of Habeas Corpus)
Appellee )
For the Appellant: For the Appellee:
John Edgar Justice, Jr., Pro Se Charles W. Burson
C.C.C.F. Attorney General and Reporter
P. O. Box 1000
Henning, TN 38041 Deborah A. Tullis
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, John Edgar Justice, Jr., appeals as of right the summary
dismissal of his petition for writ of habeas corpus. The appellant is currently serving
an effective ten to twenty-six year sentence at the Cold Creek Correctional facility in
Lauderdale County. On September 19, 1996, the appellant filed three petitions for
writ of habeas corpus, alleging that his sentences had expired.1 The State filed a
motion to dismiss alleging that the appellant’s sentences do not expire until the year
2008.2 The trial court granted the State’s motion and dismissed the appellant’s
petition finding “[the appellant] has not made a colorable claim for habeas corpus
relief.” On appeal, the appellant contends the trial court erred in finding his
sentences had not expired.
After review, the judgment of the trial court is affirmed.
ANALYSIS
The appellant admits that he received four sentences totaling ten to twenty-
six years from convictions in Blount County during the period of December 15, 1977
through September 20, 1979.3 The appellant’s record of criminal convictions is
complicated by the fact that, after his December 15, 1977 conviction, he was
released on bond pending appeal, during which time he committed additional
1
The cour t con solida ted th e app ellant ’s thre e pet itions since the d eterm inative issue in all
three petitions was the same.
2
This information was provided in an affidavit submitted by the Tennessee Department of
Correc tion which was atta ched to the State’s “Motion to Dism iss.”
3
The fo ur conv ictions and dates of impos ition of sente nces a re as follow s: (1) attem pt to
commit felony, December 15, 1977 - one to three years; (2) assault with intent to commit rape
(enh anc ed by f ive yea rs fo r use of we apo n), O ctob er 11 , 197 8 - six to fifte en yea rs; (3 ) burg lary,
first degree (concurrent with case #2, but consecutive to case #1), October 11, 1978 - an
indeterminate sentence of ten to ten years; (4) escape, consecutive to cases #1, #2, and #3,
September 20, 1979 - two to three years.
2
crimes. After his rearrest and incarceration for these crimes, he escaped. While on
escape status he committed a federal offense, which resulted in his conviction and
federal sentence of twenty years. The federal sentence was ordered to run
consecutive to his state sentences of ten to twenty-six years.4
On the day following his sentencing for escape, September 21, 1979, the
appellant was transported to Brushy Mountain State Prison. The appellant contends
that, on this date, because he was in the “legal physical custody” of the Tennessee
Department of Correction pursuant to a court ordered mittimus, his state sentences
had “commenced to run.” On September 24, 1979, the appellant was transported
from Brushy Mountain back to the Blount County jail to await transfer to a federal
correctional facility. On September 25, 1979, the appellant was placed in the
custody of federal authorities. The appellant acknowledges that his federal
sentence of twenty years was ordered to be served consecutive to his state
sentence of twenty-three years. He argues, however, that he was informed by both
the Warden at Brushy Mountain and the Blount County District Attorney General
that he would first serve his state sentences and then be transferred to the federal
prison system. After completion of his federal sentence, he would be returned to
Tennessee to complete the two to three year sentence imposed for escape. In
support of this position, he argues that he was told by the District Attorney General:
“You’ll be released from state custody to federal custody tomorrow,
September 25, 1979, you’ll remain in the legal constructive custody of
the State of Tennessee while being housed in the legal physical
custody of the federal prison system under service of your 20 year
federal sentence. I can not stop your transfer from the Tennessee
prison system to the federal prison system, but I will place a detainer
with the federal authorities for you to serve consecutively [the escape
sentence of 2-3 years] after completion of all your state sentences [23
years] and your federal sentence [20 years].
On August 24, 1992, after expiration of his federal sentence, the appellant
was returned to the Tennessee Department of Correction. In sum, the appellant
4
The federal sentence was imposed on June 1, 1979.
3
contends that the action of the Department of Correction, in permitting his transfer to
the federal prison system, in effect “. . . allowed [him] to serve his 26 year
[Tennessee] sentence in Federal custody . . . .” Accordingly, the appellant argues
that, based upon his sentence calculations, his twenty-three year state sentence
expired while he was in federal custody and his two to three year sentence has
expired since his return to Tennessee Department of Correction in 1992.
The proof in the record before us is undisputed that the twenty year federal
sentence was ordered to be served consecutive to the state sentence of ten to
twenty-six years. Thus, from this fact, simple mathematics tells us that the
appellant’s sentence has not expired. Moreover, we reject the appellant’s argument
that, during his federal incarceration, he was in “legal constructive custody” of the
State of Tennessee.
Writs of habeas corpus will issue only in the case of void judgment or to free
a prisoner held in custody after his term of imprisonment has expired. Tenn. Const.
Art. 1 § 15; Tenn. Code Ann. § 29-21-101 et seq (1990); See Potts v. State, 833
S.W.2d 60, 62 (Tenn. 1992); See also Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
The judgment of the trial court is affirmed.
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DAVID G. HAYES, Judge
CONCUR:
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GARY R. WADE, Judge
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JOE G. RILEY, Judge
4