         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs February 26, 2002

                        R. B. TOBY v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Sevier County
                           No. 5435, 5522   Rex Henry Ogle, Judge



                                  No. E2000-03127-CCA-R3-PC
                                       September 11, 2002

The appellant filed a Motion to Vacate an Illegal Sentence. The trial judge treated the motion as a
petition for post-conviction relief and dismissed the case as time barred. In this appeal, the appellant
claims the actions of the trial court were erroneous. We respectfully disagree. The judgment of the
trial court is affirmed.

      Tenn. R. App. P. Appeal as of Right; Judgment of the Circuit Court is Affirmed.

JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ROBERT W. WEDEMEYER , JJ., joined.

R. B. Toby, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General & Reporter; Laura McMullen Ford, Assistant Attorney General;
Al Schmutzer, Jr., District Attorney General; and Charles Atchley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        On January 13, 1994, the appellant pleaded guilty to two counts of vehicular homicide, one
count of vehicular assault, and one count of violating the Habitual Motor Vehicle Act. He was
sentenced as a Range II offender to two concurrent ten-year sentences for the vehicular homicides,
a sentence of five years for the vehicular assault, and four years for violating the habitual motor
vehicle law. These latter two sentences were ordered to run concurrently to each other, but
consecutively to the vehicular homicide convictions. The appellant did not appeal these sentences.
However, on October 23, 1996, he filed a petition for post-conviction relief. The trial court
dismissed the petition as time barred. On August 17, 1998, pursuant to Rule 20, Rules of the Court
of Criminal Appeals, this Court affirmed that dismissal, holding that indeed the petition was barred
by the applicable statute of limitations, Tennessee Code Annotated section 40-30-202(b). R.B. Toby
v. State, No. 03C01-9711-CC-00507 (Tenn. Crim. App. at Knoxville, Aug. 17, 1998) (no LEXIS
citation available).
        On July 21, 2000, the appellant filed a document he styled as a Motion to Vacate an Illegal
Sentence. In that motion he alleges that his sentence as a Range II offender is illegal because the
pleas he entered were involuntary in that he did not know he was receiving a sentence outside his
actual offender range. He concedes the sentence is legal for a Range II offender. The appellant also
alleges that the consecutive sentences are illegal because the trial court allegedly failed to make the
appropriate findings for consecutive sentencing. The trial court treated the motion to vacate as a
post-conviction petition and dismissed the appellant’s claims as time barred. On appeal the appellant
claims this was error in that his pleading is actually a petition for the writ of habeas corpus seeking
to set aside an illegal sentence pursuant to the Tennessee Supreme Court’s opinion in Stephenson
v. Carlton, 28 S.W.3d 910 (Tenn. 2000).


                              Post-Conviction Petition/Habeas Corpus

         The trial court properly treated the appellant’s motion as a petition for post-conviction relief.
As noted earlier the appellant’s allegations that his Range II sentence and consecutive sentences are
illegal depend on proof as to the appellant’s understanding of his plea and its consequences, as well
as an examination of his record and the trial court’s findings concerning the appropriateness of
consecutive sentencing. The Tennessee Supreme Court has held that this is a situation where only
post-conviction relief, not habeas corpus relief, is appropriate. Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). The appellant’s reliance on Stephenson v. Carlton, noted supra, is misplaced. In
Stephenson the Tennessee Supreme Court held that habeas corpus relief is appropriate only where
the face of the judgment shows that the trial court lacked jurisdiction to enter the sentence or that the
sentence has expired. 28 S.W.3d at 911. In Stephenson the face of the judgment reflected that the
petitioner had received a sentence unauthorized by law for anyone; no further proof as to legality was
required. Id. at 912.
         Since the trial court properly treated the appellant’s motion as a post-conviction petition, the
pleading must be filed within the applicable statute of limitations. Tenn. Code Ann. § 40-30-202(b).
It is apparent that the instant pleading was filed beyond the applicable statute of limitations and no
reason had been pleaded that would toll the statute. Accordingly, the trial judge properly dismissed
the appellant’s claims.


                                            CONCLUSION

        In light of the foregoing, the judgment of the trial court is AFFIRMED.




                                                         ___________________________________
                                                         JERRY L. SMITH, JUDGE



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