         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE


                ROBERT R. MCCRAY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Sullivan County
                            No. C49127 Phyllis H. Miller, Judge


                      No. E2004-01438-CCA-R3-HC - Filed April 21, 2005


The petitioner, Robert R. McCray, petitioned the Sullivan County Criminal Court for a writ of
habeas corpus to gain release from that court’s 18-month sentence imposed for a conviction of
selling a counterfeit controlled substance. The court denied the petition, and the petitioner appealed.
The state has moved this court to affirm the order via memorandum opinion pursuant to Tennessee
Court of Criminal Appeals Rule 20. We sustain the state’s motion and affirm the order pursuant
to Rule 20.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , J.,
and NORMA MCGEE OGLE, J., joined.

Richard Tate, District Public Defender, Blountville, Tennessee, for the Appellant, Robert McCray.

William B. Harper, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                   MEMORANDUM OPINION

                On August 14, 2002, the conviction court imposed a suspended one-year sentence for
the petitioner’s conviction of failure to appear and a consecutive, suspended sentence of 11 months,
29 days for his conviction of possession of cocaine. On April 20, 2004, the trial court imposed a
Department of Correction sentence of 18 months for the petitioner’s conviction of selling a
counterfeit controlled substance. The trial court ordered the sentence to be served consecutively to
the other two sentences.

                 In his May 10, 2004 petition for habeas corpus relief, the petitioner claimed that,
based upon the orders of probation in the two prior cases and a release eligibility of 30 percent in the
third case, his sentences had expired, entitling him to relief.
               Following a hearing, the habeas corpus court determined that the 18-month sentence
had not expired and that the matter of sentencing credits should be addressed via the Administrative
Procedures Act. The court entered an order on June 24, 2004, dismissing the petition.

               To be sure, habeas corpus relief is available when a petitioner’s sentence or other
restraint has expired. State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). Release eligibility,
however, is disregarded in determining sentence expiration for habeas corpus purposes. See, e.g.,
Lawrence Allen Hodge v. Mills, No. W2004-01107-CCA-R3-HC (Tenn. Crim. App., Jackson, Dec.
13, 2004).

                For purposes of our review of the habeas corpus court’s actions, it appears from the
record that the consecutive sentences imposed on August 14, 2002, were due to expire on or about
August 13, 2004. The 18-month sentence in the third case extended the expiration date for the
aggregate sentences to February 13, 2006. Thus, the third sentence had not expired expired as of the
date of the court’s order nor, for that matter, as of the current date.

               The order is affirmed.




                                                      _______________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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