         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs September 27, 2005

           TYRONE D. CONLEY v. HOWARD CARLTON, WARDEN

                     Appeal from the Criminal Court for Johnson County
                           No. 4497      Lynn W. Brown, Judge



                   No. E2005-00049-CCA-R3-HC - Filed November 2, 2005



JOSEPH M. TIPTON , J., concurring.

      I concur in the result reached in the majority opinion. However, I do so on the merits, as
opposed to the petitioner’s failure to follow procedural requirements for habeas corpus petitions.

        The majority opinion cites Hickman v. State, 153 S.W.3d 15, 19-20 (Tenn. 2004), in stating
that the procedural requirements are mandatory and must be scrupulously honored. However, our
supreme court also noted in Hickman that the trial court “may instead choose to afford the petitioner
an opportunity to comply with the procedural requirements, or the habeas corpus court may choose
to adjudicate the petition on its merits.” Id. at 21.

        In the present case, although one of the arguments made by the state dealt with the petition’s
procedural deficiencies, I view the state’s motion and the trial court’s dismissal order to focus on the
merits of the petition. That is, the specific issue addressed in them dealt with whether the petition
supported a finding that the petitioner’s conviction was void or that his sentence had expired. In this
regard, when the trial court chose to resolve the habeas corpus petition on the merits, without
concern for procedural deficiencies or for the opportunity to correct such deficiencies, we should not
then rely on the deficiencies to defeat an appeal.

         The petitioner’s central claim is that the trial court did not have jurisdiction to amend his
second degree murder judgment by removing the thirty percent release eligibility and imposing
service of one hundred percent of the sentence. Pursuant to T.C.A. § 40-35-501(i) a sentence for
second degree murder requires service of the sentence without parole, allowing only for sentence
credits for fifteen percent of the sentence. The trial court’s imposition of a thirty percent release
eligibility date was in direct contravention of law, subject to correction at any time. See Moody v.
State, 160 S.W.3d 512, 515-16 (Tenn. 2005) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.
1978)). I conclude that the petition has no merit.


                                                    ____________________________________
                                                    JOSEPH M. TIPTON, JUDGE




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