        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                            JULY SESSION, 1997         February 4, 1998

                                                    Cecil W. Crowson
DENVER JOE MCMATH,            )                   Appellate Court Clerk
                                   C.C.A. NO. 01C01-9608-CC-00360
                              )
      Appe llant,             )
                              )
                              )    WAYNE COUNTY
VS.                           )
                              )    HON. JAMES L. WEATHERFORD
STATE OF TENNESSEE,           )    JUDGE
                              )
      Appellee.               )    (Habeas Corpus)




FOR THE APPELLANT:                 FOR THE APPELLEE:

JOSEPH L. PENROD                   JOHN KNOX WALKUP
Assistant Public Defender          Attorney General and Reporter
128 North 2nd Street
P. O. Box 1208                     KAREN M. YACUZZO
Pulaski, TN 38478                  Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243

                                   MIKE BOTTOMS
                                   District Attorney General

                                   JAMES G. WHITE
                                   District Attorney General
                                   Lawrence County Courthouse
                                   Lawrenceburg, TN 38464



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                       OPINION


          Appe llant, Denver Joe McMath, appeals from the dismissal of his petition

for habeas corpus relief in which he alleged his continued incarceration was

illegal because he had fully served the sentence upon which he was being held.



          Appellant specifically alleges that under Tenn. Code Ann. § 49-28-123 (a),

his life sentence was terminated by the imposition of a sentence for a crime

committed while on release.



          We affirm the ju dgme nt of the trial co urt.



          Appellant was s enten ced to life as a h abitua l offender in 1975. In 1985,

Governor Lamar Alexander granted him a conditional commutation to time

served. While on release, Appellant again ran into co nflict with the law and in

1989, pled guilty to passing a forged instrument and received a two year

sentence. The plea agreement stipulated that the sentence agreed upon w as to

run concurrently with any federal sentence Appellant was serving.                The

agreement was s ilent as to whe ther it wa s to run cons ecutive ly or con curren tly

to Appellant’s life sentence under state law. In 1990 Governor Ned McWherter

revoked Appellant’s commutation. The Board of Paroles recommended that the

new two year sentence should begin on December 14, 1992. Governor

McWherter agreed with the Board and on July 31, 1991 signed an order to that

effect.




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      Habeas corpus relief is available in Tennessee only when “it appears upon

the face of the judgment or the record of the proceedings upon which the

judgment is rendered” that a convicting court wa s without ju risdiction or a uthority

to sentence a defendant, or that a defendant’s sentence of imprisonment or other

restraint ha s expired . Archer v. State, 851 S.W.2d 157.



      In Willie L ee Fletch er v. Gary L ivesay, et al. (C.C.A. N o. 88-19 7-III,

Davidson Coun ty, filed at Nas hville, December 28, 1988) the petitioner filed a

petition to be relea sed us ing the sa me ratio nal as the Appella nt in the insta nt

case. Fletcher was serving a murder sentence of ninety-nine years. The governor

commuted his sente nce to tim e served and im posed parole. F letcher was

subs eque ntly sentenced to serve one year on a petit larceny conviction. A year

later, the Boa rd of Pard ons an d Paro les order ed Fletch er’s larcen y senten ce to

run from the date of its imposition. Tennessee Code Annotated Section 40-28-

123 provided in pertinent part then, and does now that “an y prison er who is

convicted in this state of a felony, co mm itted while o n parole from a s tate prison,

jail or workhouse, shall serve the remainder of the sentence under which the

prisoner was paroled, or such part of that sentence, as the board may determine

before the prisoner commences serving the sentence received for the felony

comm itted while o n parole .”



      Fletcher claimed that because Tennessee Code Annotated Section 40-28-

123 require s a sen tence for an o ffense com mitted while th e priso ner is on pa role

to be served consecutively to the sentence for which the prisoner is on parole, the

action of the parole board had caused the expiration of the ninety-nine year

murder sentence. This Court held that the result of such an argument was

                                          -3-
“prepos terous” a nd “abs urd”. Fletcher, slip op at 3 . Furthe r, this court held that

such a result w ould b e con trary to T enne ssee Rules of Crim inal Pro cedu re Ru le

32(c)(3)(A)(requiring that a sentence for a felony committed while on parole must

be serve d cons ecutively to th e original s entenc e.)



       W e apply the holding o f Fletcher to this case and affirm the judgment of

the trial cou rt.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
WILLIAM M. BARKER, JUDGE




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