State v. Ricky Harris ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
AUGUST SESSION, 1997 October 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
RICK Y HAR RIS, ) C.C.A. NO. 02C01-9610-CC-00324
)
Appe llant, )
) LAKE COUNTY
)
V. )
) HON. JOE G. RILEY, JR., JUDGE
BILLY COMPTON, WARDEN, )
)
Appellee. ) (HABEAS C ORPU S)
FOR THE APPELLANT: FOR THE APPELLEE:
RICKY HARRIS, PRO SE JOHN KNOX WALKUP
#121445, L.C.R.C.F Attorney General & Reporter
Route 1, Box 330
Tiptonville, TN 38079-9775 CLINTON J. MORGAN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
C. PHILLIP BIVENS
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Petitioner, Ricky H arris, appeals the trial court’s denial of his petition for
writ of habe as corp us. The Petitio ner was indicted and pled gu ilty to a forgery
charge. Subsequ ently he was co nvicted of first degree m urder. Curren tly,
Petitioner is serving a life sentence on the first degree murder conviction which
is consecutive to a three-year sentence for forgery. In this appea l, the Petitioner,
relying on State v. Rog er Da le Hill, C.C.A. No. 01C01-9508-CC-00267, Wayne
Coun ty (Tenn. Crim. App., Nashville, June 20, 1996), perm. to app. granted,
(Tenn. 1996), contends the judgment entered against him on the forgery charge
is void because the indictment failed to allege th e men s rea of the offense. W e
affirm the ju dgme nt of the trial co urt.
Habeas corpus relief is only available when “it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered
that a convicting court was without jurisdiction or authority to sentence a
defend ant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93). Petition er asse rts
the forgery co nviction is vo id due to th e failure of th e indictm ent to allege he
intentionally, knowingly or recklessly signed the name of a corp oration not yet in
existence. Tenn. Code Ann. § 39-3-802 (repealed 1989). The trial judge
dismissed the petition stating that it was without merit for two reasons: (1) The
sufficiency of the indictment is not the proper subject of habeas corpus relief and
(2) Petition er’s life sente nce ha s not exp ired.
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Habeas corpus relief is not available if the Petitioner may still be legally
detained under a conviction other than the one being attacked in the petition for
writ of habe as corp us. Ussery v. Avery , 222 Tenn. 50, 432 S.W.2d 656, 658-59
(1968); Tenn. C ode Ann . § 29-21-122 (b)(2). It is clear from the record that
Petitioner is serving a sentence of life imprisonment for the conviction of first
degree murder, and he doe s not con test that co nviction. Furthermore, a logical
interpretation of the facts, as se t forth in the p etition, sug gests that Petitioner has
com pletely served his sentence for forg ery. He was c onvicted of forgery on June
13, 1986, and was placed on probation for three years. On May 8, 1988, after
convic tion for first degree murder, his probation on the forgery conviction was
revoked and the sentence of life imprisonment was ordered to run consecutive
to the three-year sentence for forgery. Assuming that he served the entire three-
year sentence for forg ery, that sentence would have been completely served no
later than May of 1991, a little more than five years prior to the filing of his petition
for writ of ha beas corpu s. In an y even t, Petition er is pre sently la wfully
incarcerated on a sentence of life imprisonment, and is not entitled to habeas
corpus relief on the forgery co nviction. Ussery v. Avery, 432 S.W.2d at 659.
Accord ingly, we affirm the judgm ent of the tria l court.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
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___________________________________
DAVID G. HAYES, Judge
___________________________________
JERRY L. SMITH, Judge
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