State v. James Wingard ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED MARCH SESSION , 1999 May 18, 1999 Cecil Crowson, Jr. Appellate Court Clerk JAMES G. WINGARD, ) C.C.A. NO. 02C01-9809-CC-00293 ) Appe llant, ) ) LAKE COUNTY V. ) ) ) HON. R. LEE MOORE, JR., JUDGE FRE D RAN EY, W ARDE N, ) ) Appellee. ) (HABEAS CORPUS) FOR THE APPELLANT: FOR THE APPELLEE: JAME S. G. W INGAR D, pro se JOHN KNOX WALKUP N.W.C.C. #68091 Attorney General & Reporter Route 1, Box 660 Tiptonville, TN 38079 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. Draw er E Dyersburg, TN 38024 OPINION FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 THOMAS T. WOODALL, JUDGE ORDER In this case, the Petitioner, James G. Wingard, has appealed as of right from the trial court’s dismissal of his petition for writ of habeas corpus. From the record, it appears that Petition er is curren tly serving a s entenc e resulting from h is conviction for first degree murder in 1970. He has additional convictions, at least one of which is consecutive to the sentence for first deg ree murd er. It appears that the basis of his complaint is that the Department of Correction erroneous ly increased his re lease eligibility date for parole on the first degree murder convic tion by tw enty (2 0%) p ercen t. Hab eas c orpus relief is a vailable only when it appe ars upon the face of the judgm ent or the record that the convicting court was without jurisdiction or when a defendant’s sentence has expired. Archer v. State, 851 S.W .2d 157 , 164 (T enn. 19 93). Attached to the petition for writ of habeas corpus are documents which reflect that Petitioner has sought administrative relief within the Department of Correction, which has been den ied. There is nothing in the record which indicates that the convicting court was without jurisdiction or that the Defendant’s sentence has expired. Therefore, the trial court properly dismisse d the petition for writ of habeas corpus. -2- The judgment rendered by the trial court in dismissing the petition for writ of habeas corpus was in a proceeding before the trial court without a jury, and was no t a determ ination of g uilt. The e vidence does n ot prepo nderate against the finding of the trial judge, and no error of law requiring a revers al of the judgm ent is apparent on the record. It is accordingly ordered that the judgment of the trial court is affirmed in accordance with Rule 20 of the Court of Criminal Appeals of Tennessee. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ GARY R. WA DE, Presiding Judge ___________________________________ JOSEPH M. TIPTON, Judge -3-