State v. Terrance Royal/Richard Marlowe ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1997
FILED
TER RANC E RO YAL a/k /a ) C.C.A. NO. 02C01-9609-CR-00299
Richard Marlowe, ) October 13, 1997
)
Cecil Crowson, Jr.
Appe llant, ) Appellate C ourt Clerk
)
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF SHELBY COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
TER RAN CE R OYAL a/k/a JOHN KNOX WALKUP
Richard Marlowe Attorney General and Reporter
Fla. D.C. #066519
Hendry Correctional Institution JANIS L. TURNER
Immokalee, FL 34142 Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
AMY WEIRICH
Assistant District Attorney General
Criminal Justice Complex, Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defen dant, a Florid a inm ate, ap peals from th e trial co urt’s de nial of h is
petition seeking relief from a Tennessee conviction and sentence. The trial court
treated the petition as a petition for post-conviction relief and dismissed it as
barre d by the statute of limita tions. W e affirm the dis miss al.
On Janua ry 15, 199 2, the Defendant entered guilty pleas to and was
convicted of one count of felony cocaine poss essio n and one c ount o f felony b ail
jumping. He received concurrent se ntences of fou r years and one ye ar, ordered
to be ser ved con secutively to certain se ntence s he rece ived in Florid a.
On April 27, 19 95, the D efenda nt filed a petition to “set aside, modify or
mitigate sentence” which was denied by the trial court on April 28, 1995. On May
3, 1996, the Defendant filed a petition for post-conviction relief from these
convictions, which was d ismissed by the trial court on May 14, 1996, based on
the statute of limitations.
On July 8, 1996, the Defe ndant filed a “ PET ITION FOR WR IT OF ERROR
CORAM NOBIS, or in the alternative, APPLICATION FOR WRIT OF HABEAS
CORPUS AD SUBJICIENDUM AD DUCE TESTIFICANDUM.” The trial judge
treated this petition as one for post-conviction relief and dismissed it as time
barred. It is from this order of the trial court that the Defendant appeals.
-2-
The petition esse ntially alleges that Defendant’s counsel at his guilty plea
proceeding was ineffective for not telling the Defendant that his Tennessee
sentences were to run co nsecu tively to his Flor ida sente nce an d that his g uilty
pleas entered in the T ennesse e cases w ere therefore not knowing, intelligent and
voluntary, because h e would not have pleade d guilty had he kno wn he w as to
receive sentences to be served consecutively to his Florida incarceration.
Habeas corpus relief is available only when a convicting court is without
jurisdiction or autho rity to senten ce a de fendan t or when that defen dant’s te rm
of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). The Defendant argues that his Tennessee sentences would be
expired if they had been ordered to be served conc urrently with his Florida
sentence. His argument gains him no relief because his Tennessee sentences
were clearly ordered to be served consecutively to the Florida incarceration.
Although the petition alleges grounds for post-conviction relief, the trial
judge correctly determined that the petition was barred by the statute of
limitations. Tenn. Code Ann. § 40-30-20 2; see Carter v. S tate, __ S.W.2d __
(Tenn. 19 97).
The jud gmen t of the trial cou rt is affirmed .
___________________________________
DAVID H. WELLES, JUDGE
-3-
CONCUR:
___________________________________
JOE B. JONES, PRESIDING JUDGE
___________________________________
JOE G. RILEY, JUDGE
-4-