            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                       NOVEMBER SESSION, 1997


                                                               FILED
JOHN EDGAR JUSTICE, JR.,          )                         December 30, 1997
                                  )   No. 02C01-9612-CC-00448
      Appellant                   )                            Cecil Crowson, Jr.
                                  )   LAUDERDALE COUNTY        Appellate C ourt Clerk
vs.                               )
                                  )   Hon. Joseph H. Walker, Judge
JIMMY HARRISON, Warden,           )
and STATE OF TENNESSEE,           )
                                  )   (Petition For Writ of Habeas Corpus)
      Appellee                    )



For the Appellant:                    For the Appellee:

John Edgar Justice, Jr., Pro Se       Charles W. Burson
C.C.C.F.                              Attorney General and Reporter
P. O. Box 1000
Henning, TN 38041                     Deborah A. Tullis
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                     OPINION



         The appellant, John Edgar Justice, Jr., appeals as of right the summary

dismissal of his petition for writ of habeas corpus. The appellant is currently serving

an effective ten to twenty-six year sentence at the Cold Creek Correctional facility in

Lauderdale County. On September 19, 1996, the appellant filed three petitions for

writ of habeas corpus, alleging that his sentences had expired.1 The State filed a

motion to dismiss alleging that the appellant’s sentences do not expire until the year

2008.2 The trial court granted the State’s motion and dismissed the appellant’s

petition finding “[the appellant] has not made a colorable claim for habeas corpus

relief.” On appeal, the appellant contends the trial court erred in finding his

sentences had not expired.



         After review, the judgment of the trial court is affirmed.




                                                    ANALYSIS



         The appellant admits that he received four sentences totaling ten to twenty-

six years from convictions in Blount County during the period of December 15, 1977

through September 20, 1979.3 The appellant’s record of criminal convictions is

complicated by the fact that, after his December 15, 1977 conviction, he was

released on bond pending appeal, during which time he committed additional



         1
         The cour t con solida ted th e app ellant ’s thre e pet itions since the d eterm inative issue in all
three petitions was the same.

         2
          This information was provided in an affidavit submitted by the Tennessee Department of
Correc tion which was atta ched to the State’s “Motion to Dism iss.”

         3
          The fo ur conv ictions and dates of impos ition of sente nces a re as follow s: (1) attem pt to
commit felony, December 15, 1977 - one to three years; (2) assault with intent to commit rape
(enh anc ed by f ive yea rs fo r use of we apo n), O ctob er 11 , 197 8 - six to fifte en yea rs; (3 ) burg lary,
first degree (concurrent with case #2, but consecutive to case #1), October 11, 1978 - an
indeterminate sentence of ten to ten years; (4) escape, consecutive to cases #1, #2, and #3,
September 20, 1979 - two to three years.

                                                         2
crimes. After his rearrest and incarceration for these crimes, he escaped. While on

escape status he committed a federal offense, which resulted in his conviction and

federal sentence of twenty years. The federal sentence was ordered to run

consecutive to his state sentences of ten to twenty-six years.4



      On the day following his sentencing for escape, September 21, 1979, the

appellant was transported to Brushy Mountain State Prison. The appellant contends

that, on this date, because he was in the “legal physical custody” of the Tennessee

Department of Correction pursuant to a court ordered mittimus, his state sentences

had “commenced to run.” On September 24, 1979, the appellant was transported

from Brushy Mountain back to the Blount County jail to await transfer to a federal

correctional facility. On September 25, 1979, the appellant was placed in the

custody of federal authorities. The appellant acknowledges that his federal

sentence of twenty years was ordered to be served consecutive to his state

sentence of twenty-three years. He argues, however, that he was informed by both

the Warden at Brushy Mountain and the Blount County District Attorney General

that he would first serve his state sentences and then be transferred to the federal

prison system. After completion of his federal sentence, he would be returned to

Tennessee to complete the two to three year sentence imposed for escape. In

support of this position, he argues that he was told by the District Attorney General:

        “You’ll be released from state custody to federal custody tomorrow,
       September 25, 1979, you’ll remain in the legal constructive custody of
       the State of Tennessee while being housed in the legal physical
       custody of the federal prison system under service of your 20 year
       federal sentence. I can not stop your transfer from the Tennessee
       prison system to the federal prison system, but I will place a detainer
       with the federal authorities for you to serve consecutively [the escape
       sentence of 2-3 years] after completion of all your state sentences [23
       years] and your federal sentence [20 years].


       On August 24, 1992, after expiration of his federal sentence, the appellant

was returned to the Tennessee Department of Correction. In sum, the appellant



      4
          The federal sentence was imposed on June 1, 1979.

                                              3
contends that the action of the Department of Correction, in permitting his transfer to

the federal prison system, in effect “. . . allowed [him] to serve his 26 year

[Tennessee] sentence in Federal custody . . . .” Accordingly, the appellant argues

that, based upon his sentence calculations, his twenty-three year state sentence

expired while he was in federal custody and his two to three year sentence has

expired since his return to Tennessee Department of Correction in 1992.



       The proof in the record before us is undisputed that the twenty year federal

sentence was ordered to be served consecutive to the state sentence of ten to

twenty-six years. Thus, from this fact, simple mathematics tells us that the

appellant’s sentence has not expired. Moreover, we reject the appellant’s argument

that, during his federal incarceration, he was in “legal constructive custody” of the

State of Tennessee.



       Writs of habeas corpus will issue only in the case of void judgment or to free

a prisoner held in custody after his term of imprisonment has expired. Tenn. Const.

Art. 1 § 15; Tenn. Code Ann. § 29-21-101 et seq (1990); See Potts v. State, 833

S.W.2d 60, 62 (Tenn. 1992); See also Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).



       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge


CONCUR:


________________________________
GARY R. WADE, Judge


________________________________
JOE G. RILEY, Judge

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