        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        AUGUST SES SION, 1998

                                                             FILED
RONALD PARKER,              )    C.C.A. NO. 02C01-9711-CC-00459
                            )                          September 14, 1998
      Appe llant,           )
                            )                                Cecil Crowson, Jr.
                                                             Appe llate Court C lerk
                            )    LAKE COUNTY
VS.                         )
                            )    HON. R. LEE MOORE, JR.
FRED RANEY, WARDEN          )    JUDGE
and                         )
STATE OF TENNESSEE          )
                            )
      Appellee.             )    (Habeas Corpus)


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



FOR THE APPELLANT:               FOR THE APPELLEE:

RONALD L. PARKER                 JOHN KNOX WALKUP
Pro Se                           Attorney General and Reporter
Route 1, Box 660
Tiptonville, TN 38079            MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 425 5th Avenu e North
                                 Nashville, TN 37243

                                 C. PHILLIP BIVENS
                                 District Attorney General
                                 P.O. Draw er E
                                 Dyersburg, TN 38024




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                OPINION

      The Defendant, Ronald L. Parker, appeals as of right from the dismissal

of his petitio n for ha beas corpu s relief. T he De fenda nt is an inma te in the

custody of the Department of Correction. According to his petition and the

exhibits attached thereto, on May 1, 1995, he pleaded guilty to and was convicted

of three counts of burglary. For these convictions, he was sentenced to three

concurrent eight-yea r terms in th e Dep artment of Correction. His petition for

habeas corpus relief alleged that his convictions a nd sentenc es are void because

the sentences were not ordered to be served consecutively to a prior sentence

as required by law. T he trial court summarily dismissed the habeas corpus

petition, finding that the judgments of conviction were not void and that the

Defe ndan t’s sentences had not exp ired. We affirm the judgment of the trial cou rt.




      Habeas corpu s relief is availa ble on ly whe n a co nvicting court is without

jurisdiction or autho rity to sente nce a d efenda nt or whe n that defendant’s term

of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 199 3).




      On appeal, the Defendant argues that at the time he was sentenced for the

three burglaries, he was on parole from a prior Tennessee sentence of twenty-

eight years. He there fore argues tha t his eight-year sen tences for burg lary

constitute illegal sentences because they were not ordered to be served

conse cutively to h is twenty -eight yea r senten ce as req uired by la w. See Tenn.

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Code Ann. § 40-28-123. The Defendant relies upon decisions of this Court and

of our su preme court wh ich hold th at beca use the law requ ires the trial co urt to

impose a consecutive sentence on any defendant convicted of a felony

committed while o n paro le from a state prison , jail, or wo rk hou se, a tria l court is

without jurisdiction or authority to enter a judgm ent against a d efendant for a

concurrent senten ce. See Archer, 851 S.W.2d at 163; Hen derso n v. Sta te ex re l.

Lance, 419 S.W .2d 176 (Tenn. 1 967); Taylor v. Morgan, 909 S.W.2d 17, 20

(Tenn. Crim . App. 1995 ).




       We conclud e that the D efenda nt’s argum ents lack merit. Initially, we note

that the judgmen ts sentencing th e Defend ant to eight-year term s for burglary

provide that the burglary sentences shall be se rved co ncurren t with each other

and concurrent with a sentence from the state of Texas. The judgments make

no reference to any prior Tennessee sentences. The record on appeal contains

no evide nce c once rning a prior Te nnes see s enten ce oth er than the De fenda nt’s

unsupported allegations in his petition.




       Secondly, we no te that a se ntence for a felony comm itted while th e

Defendant was on parole for another felony shall be deemed to run consecutive

to the prior sentence being served on parole whether the judgment explicitly so

provides or not.     Tenn. R. Crim. P. 32(c)(3)(A).         Based on the allegations

contained in the Defendant’s petition and statements made in his argument, the

Board of Parole s and the Depa rtment of Correction became aware of the prior




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sentence and correctly treated the eight-year sentences as running consecutive

to the prior sentence.




       Although the De fenda nt alleg es tha t his plea agreement provided that the

eight-year sente nces would run co ncurre nt with his prio r sente nce, th e judgments

do not so provide. A s we ha ve note d, the judg ments make no refere nce to any

prior unserved Tennessee sentence.               Because the Defendant’s eight-year

sentences were not ordered to be served concurrently with a prior unserved

sentence, the eight-year sentences for burglary are not illegal and the judgment

of conviction is not void.




       We conclude that the convicting cou rt had jurisd iction and authority to

sentence the Defendant, and it is clear that the Defendant’s term of imprisonment

under his eight-year sentences had not expired. For this reason, we conclude

that the trial jud ge did no t err in deny ing the D efenda nt habe as corp us relief.




       The Defendant also alleges that his guilty pleas resulting in the burglary

convictions were not knowing and voluntary because his plea agreement

provided that his burglary sentences would run concurrent with his prior

sentences. Even if these allegations were true, they would not provide the

Defendant a basis for habeas corpus relief. These allegations could provide

grounds for post-conviction relief, assuming consideration of the allegations is not

barred by the applicable statute of limitations.




                                           -4-
      The judgment of the trial court dismissing the Defendant’s petition for

habeas corpus relief is affirmed.




                   ____________________________________
                             DAVID H. WELLES, JUDGE

CONCUR:




___________________________________
JERRY L. SMITH, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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