        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE            FILED
                        APRIL SESSION, 1999           May 6, 1999

                                                 Cecil W. Crowson
JIMMY SILLS,               )                   Appellate Court Clerk
                                C.C.A. NO. 01C01-9810-CC-00434
                           )
      Appe llant,          )
                           )
                           )    HICKMAN COUNTY
VS.                        )
                           )    HON. TIMOTHY L. EASTER,
STATE OF TENNESSEE &       )    JUDGE
JACK MORGAN, WARDEN,       )
                           )
      Appellees.           )    (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF HICKMAN COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

JIMMY SILLS                     JOHN KNOX WALKUP
Pro Se                          Attorney General and Reporter
Route #1
Only, TN 37140-9709             LUCIAN D. GEISE
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JOE D. BAUGH, JR.
                                District Attorney General

                                RON ALD L . DAVIS
                                Assistant District Attorney
                                Williams on Coun ty Courthous e, G-6
                                Franklin, TN 37064



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                     OPINION

       The Defendant, Jimmy Sills, appeals the trial court’s summary dismissal

of his pe tition for writ of habeas corpus.            In his pro se brief to this C ourt,

Defendant argues that his convictions for first deg ree mu rder and for use of a

firearm during commission of a felony violate double jeopardy because the use

of a firearm is an essential eleme nt of first deg ree mu rder. For the same reasons

this issue was previously determined to be without merit, we affirm the judgment

of the trial cou rt.



                                  I. DOUBLE JEOPARDY

       In June 1985, a Hamilton County Grand Jury indicted Defendant for the

first degree murder of Frank Bentley, Sr. by use of a firearm. On February 5,

1986, a jury convicted Defendant of first degree murder pursuant to Tennessee

Code Annotated § 39-2-202(a), an d use o f a firearm during co mm ission of a

felony pursuant to § 3 9-6-1710(a )(1).1 Defendant challenged his convictions on

direct appeal, and this Court determined that because “[m]urder in the first

degree may be committed without the employment of a firearm,” and because

“there is no provision in law for enhancement of the punishment for murder in the

first degree, T.C.A. 39-6-17 10(a)(1) was pro perly app lied.” State v. Jimm y Sills,

Hamilton Criminal No. 984, 1987 WL 5334, at *3 (Jan. 13, 1987) (previous

opinion vacated and re-entered in full on Ja nuary 30, 199 0 by State v. Jimmy

Sills, No. 114 6, 1990 WL 5683 (J an. 30, 19 90)).


       1
          Former Tennessee Code Annotated § 39-6-1710(a)(1) provided that “[a]ny person
who employs any firearm . . . while committing . . . a felony is guilty of a felony, and on
conviction of the first offense shall be punished by imprisonment in the penitentiary for five (5)
years.” Tenn. Code Ann. § 39-6-1710(a)(1).

                                               -2-
      Defendant contends that this finding by the Court on direct appeal did not

address the issue of dou ble jeopardy. We disagree. It appears that Defe ndan t’s

argument on direct appeal was that “the [trial] court erred by instructing the jury

on the use of a firearm in the comm ission of a felony because the possession

and use of a firearm is an essential element of the offense of first degree murder

charged in this case.” See id. at *3 (emphasis added). Clearly, as the issue was

framed and examined, we addressed the issue of double jeopardy. Therefore,

this issue has been previously addressed by this Cou rt and fou nd to be without

merit. W e again conclud e that the is sue lack s merit.



                               II. DUE PROCESS

      Next, we briefly address Defendant’s contention, included in his petition for

writ of habeas corpus but not briefed on ap peal to this Cou rt, that “the jury

convicted the petitioner of two (2) offenses: murder in the first degree and use of

a firearm while in commission of a felony, while the Grand Jury only returned a

one (1) count indictment for murder by use of a firearm,” which seems to pose a

due pro cess arg umen t.



      Former Tennessee Code Annotated § 39-6-1710 also required that “[a]ny

person who is arrested for committing any felony while using a firearm must also

be charged u nder the provision s of this section.” Id. § 39-6-171 0(a)(4). Although

Defendant was not indicted in two separate counts, this Court concluded on

direct appeal that Defendant was “on notice” of the additional penalty due to the

wording of the original indictme nt for mu rder. Sills, 1987 WL 5334, at *3. That

opinion reflects that because the indictment charged him with “first degree

murder by use of a firearm, to wit, a pistol,” Defendant was “therefore on notice

                                        -3-
that if convicted of the alleged crime, accomplished by use of a firearm, the

enhance ment provide d in T.C.A. § 3 9-6-1710(a )(1) applied.”



       In addition to this Court’s previous determination that the one-count

indictment placed D efenda nt on no tice of the a dditional p enalty for us e of a

firearm; we note that the Tennessee Supreme Court discussed the issue in State

v. Hudson, 562 S.W .2d 416 (Te nn. 1978). 2 The supreme court held that § 39-6-

1710(a)(1) “d[id] not cre ate a ne w felony,” “but provide[d] only for increased

punish ment.” Id. at 419.3 Therefore, Defendant was not convicted for an offense

for which he was not indicted.4 We again conclude that this issue lacks merit.



       Because the issu e pres ented by De fenda nt on th is app eal wa s previo usly

determ ined by this Court on direct appeal, we believe the “law of the case

doctrine” could preclude revisiting the issu e.           See Memp his Publ’g. Co. v.



       2
          Defendant relies upon Hudson to support his double jeopardy argument. Hudson is
distinguishable from this case for double jeopardy purposes because the principal felony in
Hudson, armed robbery, was a felony “for which the law already prescribes an enhanced
penalty for the offender who commits such felonies by means of a firearm.” Hudson, 562
S.W.2d at 419. In this case, as determined on direct appeal, first degree murder does not
require use of a firearm; or, in the language of Hudson, the law did not prescribe an enhanced
punishment for the offender who committed murder by means of a firearm.
       3
          The court recognized the ambiguous nature and inartful drafting of § 39-6-1710(a)(1)
when it stated,
                The obvious purpose of this enactment was to provide additional
       punishment for one who employs a firearm as a means of committing a f elony.
       It could have been achieved more easily if the legislature had not included the
       language “ . . . is guilty of a felony, . . . .” It certainly was not necessary to
       include that language in order to provide such additional punishment. To give
       a literal interpretation to the quoted phrase results, of course, in the conclusion
       that this statute creates and defines a new felony that is separate and distinct
       from the “principal” felony which is committed by means of a firearm. . . . [W]e
       conclude that the statute should be given a construction that will render it
       constitutional and effective to carry out the obvious legislative intent.
Hudson, 562 S.W.2d at 418-19.
       4
         Finally, of course, had such a due process argument borne merit, it nevertheless
would have been inappropriate for habeas corpus relief because Defendant is currently
confined under a lawful sentence of life imprisonment for first degree murder.

                                             -4-
Tennessee Petroleum, 975 S.W.2d 303, 306 (Tenn. 1998). Nevertheless, we

have revisited the issue and find it to be without merit. The judgment of the trial

court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JAMES CURWOOD WITT, JUDGE




                                        -5-
