              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON



CEDRIC LAFONTE FRANKLIN,                    )
                                            )
       Petitioner,                          ) C. C. A. NO. 02C01-9809-CC-00289
                                            )
vs.                                         ) LAUDERDALE COUNTY
                                            )
STATE OF TENNESSEE,

       Respondent.
                                            ) No. 5153
                                            )
                                            )
                                                           FILED
                                                           December 29, 1998

                                                           Cecil Crowson, Jr.
                                        ORDER              Appellate C ourt Clerk




              This matter is before the Court upon motion of the state to affirm the

judgment of the trial court by order rather than formal opinion. See Rule 20, Rules of

the Court of Criminal Appeals. This case represents an appeal from the trial court’s

dismissal of the petitioner’s petition for writ of habeas corpus. On August 3, 1993, the

petitioner was indicted on one count of first degree murder, one count of first degree

felony murder, and one count of especially aggravated robbery. On January 21, 1994,

the petitioner pled guilty to second degree murder and especially aggravated robbery.

No appeal was taken. In his present petition, the petitioner claims that his conviction for

second degree murder is void because second degree murder is not a lesser included

offense of felony murder. The trial court found the petitioner was not entitled to habeas

corpus relief and dismissed the petition.



              Habeas corpus relief is available in Tennessee only 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 defendant, or that a defendant’s sentence of
              imprisonment or other restraint has expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner’s sentence has not

expired. Additionally, the judgment in this case clearly establishes that the convicting

court had jurisdiction to convict the petitioner of second degree murder. The petitioner

was indicted for premeditated first degree murder in addition to felony first degree

murder. Second degree murder is a lesser included offense of premeditated first
degree murder. See e.g. State v. Belser, 945 S.W.2d 776, 790 (Tenn. Crim. App.

1996). Contrary to the petitioner’s argument, the two separate counts of the first

degree murder indictment would not “merge” at trial. See State v. Gautney, 607

S.W.2d 907 (Tenn. Crim. App. 1980).



              Accordingly, for the reasons stated above, it is hereby ORDERED that the

state’s motion is granted and the judgment of the trial court is affirmed in accordance

with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be

taxed to the state.




                                         ______________________________
                                         JOE G. RILEY, JUDGE



                                         ______________________________
                                         DAVID G. HAYES, JUDGE



                                         ______________________________
                                         JOHN EVERETT WILLIAMS, JUDGE




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