         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 23, 2010

                  STATE OF TENNESSEE EX REL
       DARRELL W. LUNSFORD v. HOWARD CARLTON, WARDEN

                    Appeal from the Circuit Court for Johnson County
                           No. 5185    Robert E. Cupp, Judge




                   No. E200-01259-CCA-R3-HC - Filed August 9, 2010




J OSEPH M. T IPTON, P.J., dissenting.

                                     DISSENTING OPINION

       I respectfully dissent from the conclusion that the incorrect release eligibility date (RED) was
not a material part of the plea agreement. I do not believe the record justifies such a conclusion
without an evidentiary hearing. I also do not believe that the habeas court should be the forum to
determine whether the Petitioner should be entitled to withdraw his plea. Once the habeas court
determines that an illegal sentence has been imposed and vacates the judgment of conviction, what
then occurs in the original case should be left to the convicting court to decide.

        At the guilty plea hearing, the trial judge went into detail explaining to the Petitioner his
release eligibility after serving 30% of the sentence, less 40% of that as early release then existing
because of prison crowding. In fact, though, the RED did not apply to him, and he was not told the
lack of release that applied. The Petitioner should be entitled to move to withdraw his plea and
explain why such should be allowed. The convicting court is then in the best position to decide the
merits, if any, of the Petitioner's motion.


                                                       __________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE
