            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                             MAY 1998 SESSION
                                                         August 25, 1998

                                                     Cecil W. Crowson
RALPH ROE,                    *    C.C.A. # 01C01-9708-CR-00354 Clerk
                                                   Appellate Court

      Appellant,              *    DAVIDSON COUNTY

VS.                           *    Hon. J. Randall W yatt, Jr., Judge

STATE OF TENNESSEE,           *    (Habeas Corpus)

      Appellee.               *




For Appellant:                     For Appellee:

Ralph Roe, #114901, Pro Se         John Knox Walkup
R.M.S.I. Unit 6-B-222              Attorney General and Reporter
7475 Cockrill Bend Road
Nashville, TN 37209-1010           Timothy F. Behan
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Second Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

              The defendant, Ralph Roe, appeals the trial court's denial of habeas

corpus relief. In this appeal of right, the petitioner contends that he should have

been appointed counsel, received a hearing, and been granted relief based upon

the invalid arrest warrant.



              We affirm the judgment of the trial court.



              On or about February 9, 1997, the petitioner, who is serving a twenty-

five-year sentence for a 1988 second degree murder conviction, filed a petition for

writ of habeas corpus seeking his release from prison. In 1991, he was charged

with felony escape. Thereafter, the petitioner apparently entered into a plea bargain

in the General Sessions Court whereby he pled guilty to misdemeanor escape and

received an eleven month, twenty-nine-day sentence at seventy-five percent. He

characterizes his claim as follows:

              The Petitioner contends that his sentence is void, due to
              he was sentenced to felony charges and serving time on
              felony charges when the escape took place, and he
              should have been sentenced felony escape rather than a
              misdemeanor escape, this is a clear violation of due
              process and it damages the Petitioner and it is a void
              sentence being it is illegal.

              The Petitioner contends that he should have been
              sentenced to a felony escape rather than misdemeanor
              escape, and that since he was serving sentences for
              felony convictions and he was not bound over to the
              Grand Jury and was not processed through the judicial
              system according to [Rule 5(d) of the Tennessee Rules
              of Criminal Procedure], regarding felony charges and
              rights of defendants in regards to felony charges
              appearing before the magistrate, his charges need to be
              dismissed and dropped accordingly.

              The Petitioner contends that the court that sentenced
              him had no jurisdiction over him in sentencing him to a
              misdemeanor escape, since he was serving sentences
              for felony convictions and thereby respectfully asks this
              Court to dismiss the charge of escape that is being held

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              against him.



              In the order of dismissal, the trial court determined that, in addition to

the second degree murder conviction, which had a sentence that would not expire

until 2013, the petitioner was serving concurrent sentences on other convictions. It

determined that the eleven month, twenty-nine-day sentence was consecutive, that

the petitioner had been denied parole in 1996, and that the next possible date for

parole was October of 1998. The trial court concluded that the general sessions

court had jurisdiction to accept petitioner's guilty plea to misdemeanor escape.

Tenn. Code Ann. § 40-1-109; Tenn. R. Crim. P. 5(c)(1).



              The trial court determined that petitioner had been represented by

counsel on the escape charge, had been apprised that the charge would be a

misdemeanor, signed a waiver of rights to consideration by a grand jury or a trial by

jury by way of presentment or indictment, and pled guilty to that offense.



              The trial court found that Attorney Sue Evans, who approved the plea

agreement on the escape charge, had the authority to preside over the case. See

Tenn. Code Ann. § 16-15-209. Now, Judge Evans is a general sessions judge in

Metropolitan Davidson County.



              Initially, at the time of the petitioner's second degree murder

conviction, the Post-Conviction Procedure Act provided that a petition for relief,

irrespective of the remedy sought, had to filed "within three years of the final action

of the highest state appellate court to which an appeal is taken." Tenn. Code Ann. §

40-30-102 (1986). In contrast, habeas corpus has no statutory period of limitations;

however, relief may be granted only when a petitioner has established lack of


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jurisdiction for the order of confinement or that he is otherwise entitled to immediate

release because of the expiration of his sentence. See Ussery v. Avery, 432

S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn.

Crim. App. 1969). If a claim is based upon an alleged abridgement of a

constitutional right, the petitioner must use the Post-Conviction Procedure Act.

Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982).



              It does not appear on the face of this judgment or the record that the

trial court was without jurisdiction to convict or sentence the defendant for the

second degree murder conviction. There is no indication that the general sessions

court lacked authority to enter the misdemeanor escape conviction. Neither does it

appear that the sentences of imprisonment for the petitioner have expired. Archer v.

State, 851 S.W.2d 157 (Tenn. 1993); Potts v. State, 833 S.W.2d 60 (Tenn. 1992).



              When it can be conclusively determined that no relief is available, the

petition may be dismissed summarily without the appointment of counsel. In this

case, the petitioner has failed to state a ground upon which the trial court could have

determined that either of the two judgments were facially invalid. Clearly, the

sentences have not expired.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge




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CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Jerry L. Smith, Judge




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