         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 14, 2009 Session

       ROBERT WAYNE MCCLANAHAN v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Crockett County
                      Nos. 3691, 3693, 3795   Clayburn Peeples, Judge



                  No. W2008-02658-CCA-R3-HC - Filed November 19, 2009


The petitioner, Robert Wayne McClanahan, appeals the denial of his petition for habeas corpus
relief. He entered guilty pleas to three charges: burglary of an automobile, a Class E felony, and two
counts of burglary of a building other than a habitation, both Class D felonies. He was sentenced as
a Range I, standard offender to one year for the Class E felony in case number 3691, and to two years
in case number 3693 for the Class D felony. He was sentenced as a Range II, multiple offender to
six years for the Class D felony in case number 3795. These sentences were to run consecutively
for an effective sentence of nine years. The petitioner claims he is on a suspended sentence and is
being held improperly. We conclude that the judgments from which he appeals neither are void nor
has his sentence expired. The record reveals that the petitioner is entitled to a hearing on whether
he violated the provisions of drug court, thereby violating his conditions of probation. The judgment
dismissing the petition for habeas corpus relief is affirmed, but we remand to the trial court for a
hearing on the petitioner’s violation of probation in case number 3795.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                        Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN , JJ., joined.

S. Jasper Taylor, IV, Bells, Tennessee, for the appellant, Robert Wayne McClanahan.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION
         In his petition for habeas corpus relief, the petitioner claims that he is being improperly held
in jail. To secure his release, he began writing letters to the Circuit Court judge via the Circuit Court
Clerk. The trial court appointed an attorney for the petitioner, and the underlying petition for habeas
corpus relief was filed. On October 16, 2008, the trial court held a hearing on the petition, and it was
stipulated that all the facts set out in the petition were accurate. The petition included the following
facts in support thereof:

        1.      This Court has jurisdiction to hear this petition pursuant to [Tennessee Code
                Annotated section] 29-21-103 and [Tennessee Code Annotated section] 29-
                21-105.
        2.      Petitioner demands that the Court hear this petition instantly pursuant to
                [Tennessee Code Annotated section] 29-21-108.
        3.      In March 2004 Petitioner was charged with several misdemeanors and
                Petitioner pled guilty to Theft and was sentenced to [eleven months and
                twenty-nine days] suspended to six months. Petitioner served the six months.
        4.      Petitioner was later charged in an information numbered 3691 and an
                indictment numbered 3693.
        5.      June 13, 2005, Petitioner pled guilty to Burglary of an Auto in 3691 and
                received a sentence of [one] year all suspended and at the same time pled
                guilty to Burglary in 3693 and received a sentence of [two] years all
                suspended after [seven] months consecutive to 3691. Petitioner served the
                seven months. . . .
        6.      Petitioner was then charged in 3795 with Burglary-other than Habitation,
                Vandalism, 500-1000, Theft under 500, and underage possession of alcohol.
        7.      Due to the above charges, a probation violation was filed and served on the
                Petitioner in 3691 and 3693.
        8.      On April 3, 2006, Petitioner pled guilty to Burglary of a building in 3795 and
                received a sentence of [six] years suspended after completion of drug court,
                consecutive to 3691. At the same time the probation violation was dismissed.
                ...
        9.      Petitioner was not able to complete Drug Court and returned to custody.
        10.     On August 29, 2006 Petitioner was granted a suspended sentence in cause
                #3795. The probation order was filled out by the probation officer who put
                the docket numbers 3691 and 3693 on the order but those sentences added up
                to only [three] years and were already suspended. The probation order
                suspends a sentence of [six] years which Petitioner received in 3795. . . .
        11.     Probation violation reports were filed on December 14, 2006 and again on
                February 21, 2007 but were filed again in the wrong case as they referred to
                a [six-]year sentence. Both were dismissed in October 2007. . . .
        12.     At [the] time the probation violations were dismissed in October 2007,
                Petitioner pled guilty to Driving on Revoked [License] in General Sessions
                Court and received a sentence of [eleven months and twenty-nine days with]
                all but [six] months suspended.


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         13.       Petitioner was released [on his own recognizance] for medical but returned
                   to jail and finished serving his six[-]month sentence in August, 2008.
         14.       After Petitioner finshed serving the [six-]month sentence he was still held but
                   no one could tell him why.
         15.       There appears in case # 3795 a mittimus alleging Petitioner was violated out
                   of drug court, to be held for Circuit Court June 17, 2008, signed by the
                   General Sessions Judge but said mittimus is not dated, is not stamped filed,
                   and has not been served on the Petitioner. . . .
         16.       The mittimus appeared in the file sometime after May 1, 2008 and before
                   June 17, 2008.
         17.       Furthermore since the order entered in July/August 2006 completion of Drug
                   Court is not a condition of Petitioner’s suspended sentence.
         18.       Petitioner began writing letters to the Circuit Judge via the Clerk maintaining
                   that he had finished serving his sentence and the Circuit Judge appointed
                   [counsel] to represent the Petitioner.
         19.       After going through all of Petitioner’s files provided by the Clerk of the Court
                   Petitioner’s attorney can not explain why Petitioner is still incarcerated after
                   serving his sentence.
         20.       Petitioner maintains that he is entitled to be told why he is being held.
         21.       Petitioner further maintains that before any of his suspended sentences can
                   be revoked, a violation must be filed or a warrant taken out and the same be
                   served upon him and he be given a hearing and an opportunity to be heard.
         22.       Petitioner maintains that the practice of continuing to hold prisoners who
                   have served their sentence is unconstitutional under both the U.S. and
                   Tennessee constitutions.

        Following a hearing on the petition for habeas corpus relief, the court determined that the
petitioner was never placed on probation in case number 3795, because the petitioner had not
completed the drug court program as a condition precedent.1 This appeal followed.

                                                         Analysis

        The petitioner contends that he was denied due process and is entitled to a writ of habeas
corpus. Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable procedures for
seeking a writ. While there is no statutory time limit in which to file for habeas corpus relief,
Tennessee law provides very narrow grounds upon which such relief may be granted. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition may be used only to contest void
judgments which are facially invalid because (1) the convicting court was without jurisdiction or



         1
          No witnesses were called. At this time, the petitioner and State stipulated that all facts set forth in the petition
were accurate.

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authority to sentence a defendant; or (2) a defendant’s sentence has expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993).

        It is well settled that “a petition for writ of habeas corpus may not be used to review or
correct errors of law or fact committed by a court in the exercise of its jurisdiction.” Edwards v.
State, 269 S.W.3d 915, 920 (Tenn. 2008) (quoting State ex rel. Holbrook v. Bomar, 211 Tenn. 243,
246, 364 S.W.2d 887, 888 (1963)). Furthermore, “the writ of habeas corpus cannot be used to serve
the purpose of an appeal or writ of error.” Id.

        The petitioner’s claim does not present a void judgment that is facially invalid because he
has not presented a claim that the convicting court was without jurisdiction to order his sentence or
that the sentence has expired.

       Next, the petitioner sets out a due process claim that the trial court improperly revoked his
probation without notice or an opportunity to be heard in case number 3795. The State simply states
that because the petitioner did not successfully complete the drug court program, he was never
placed on probation.

         The judgment in case number 3795 provides that the petitioner was sentenced to serve six
years, suspended upon completion of the drug court program. After hearing all the arguments in this
petition, the trial court found that the petitioner had never been placed on probation because he did
not complete the drug court program. The record also reveals several failed drug screens and a new
charge of reckless driving, any of which may be sufficient to violate the petitioner’s probation. What
is glaringly missing from the record, however, is any notice or opportunity to be heard. Upon this
record, we are unaware of any difference between drug court and the various other programs
available to trial courts throughout the state. In the event a petitioner violated the rules of the
program or does not complete a program as ordered, notice must be given regarding the violation
and a hearing must be afforded the petitioner. See T.C.A. § 40-35-311 (2006). Concluding, upon
this record, that this petitioner has shown his probation was revoked and was not given a notice or
opportunity to be heard, we remand this case for a hearing as to whether the petitioner violated the
terms and conditions of his probation. Here, the petitioner was given an alternative sentence to
incarceration and, when that alternative sentence is taken away, it cannot be done automatically or
by operation of law. Rather, the petitioner must be provided notice and an opportunity to be heard.
Id.

        One may read the petitioner’s claims as not being given proper credits toward his sentences.
In that vein, we note such jurisdiction is not proper with this court; rather, when a petitioner seeks
a determination of the granting of credits toward his sentence, such a claim is cognizable under the
Administrative Procedures Act codified at Tennessee Code Annotated sections 4-5-101 to -325.

                                             Conclusion




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       Based on the foregoing and the record as a whole, we affirm the denial of the petition for
habeas corpus relief but remand for a hearing on the petitioner’s violation of probation.




                                                     ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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