Tommy Walker v. State, Ex Rel, Donal Campbell, etc. ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JUNE 1998 SESSION
September 10, 1998
Cecil W. Crowson
TOMMY JOE WALKER ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9707-CR-00297
)
) Davidson County
v. )
) Honorable Walter C. Kurtz, Judge
)
STATE OF TENNESSEE, ) (Writ of Habeas Corpus)
Ex Rel. Donal Campbell, )
Commissioner of the Tennessee )
Department of Corrections and )
RICKY J. BELL, Warden, )
)
Appellees. )
DISSENTING OPINION
I respectfully dissent. I believe that the judgment of conviction orders the
imposed sentence to be served concurrently with the sentences for which the petitioner
was on parole. The judgment’s reference to the Parole Board’s discretion and ability to
limit the “concurrency aspect” in its revocation proceeding is irrelevant to whether the
sentences were ordered to be served concurrently. The Board may have the discretion
to decide how much of the revoked parole sentence is to be served in confinement, but
it is the statute, T.C.A. § 40-3620, that bars concurrent sentencing, not the Board. In
this respect, the trial court’s concurrent sentencing is void under Henderson v. State ex
rel. Lance, 220 Tenn. 520, 419 S.W.2d 176 (1967).
Also, I question the analysis used by the majority opinion in deciding that
“it is not clear on its face that the judgment is void.” Although the judgment clearly
states that the petitioner is being convicted of a felony, has “prior cases in which he has
been paroled and charged with parole violation,” and the sentence will run concurrently
to those sentences, the majority opinion refers to matters outside the record that are
unclear, such as, whether parole was revoked and whether he served his sentences
consecutively, to present a clouded view of the record. However, the bar to concurrent
sentences provided by T.C.A. § 40-3620 operates and the void nature of the judgment
remains regardless of whether the parole is revoked or how the sentence is served.
Also, although I fully agree with my colleagues’ concerns about inordinate
time passing before a petitioner makes a collateral attack upon a judgment of
conviction, I do not believe that the doctrine of laches should apply to bar habeas
corpus relief in Tennessee from a void judgment. Most of the cases cited by the
majority opinion relate to procedures involving or similar to our post-conviction laws, not
the issue of a void judgment. As the majority opinion notes, though, our supreme court
has stated that habeas corpus has no time limitation. Potts v. State, 833 S.W.2d 60, 62
(Tenn. 1992). In this respect, no amount of time should be able to turn a void judgment
into a valid judgment.
___________________________
Joseph M. Tipton, Judge
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