        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 10, 2013

                  ELIJAH TRUITT v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 2002-A-43         Seth Norman, Judge



                   No. M2013-01848-CCA-R3-HC - Filed April 10, 2014


Petitioner, Elijah Truitt, pled guilty to possession of a firearm by a felon and possession of
greater than .5 grams of cocaine with intent to sell in Davidson County. The trial court
sentenced Petitioner to eleven years for possession of cocaine and two years for possession
of a firearm to be served consecutively. Petitioner was placed on community corrections.
Petitioner’s community corrections sentence was eventually revoked and he was ordered to
serve his original sentence as imposed. The trial court filed an amended judgment reflecting
the revocation and imposition of the sentence. Petitioner filed a petition for writ of habeas
corpus arguing that his sentence was illegal. After a thorough review of the record, we
conclude that Petitioner’s arguments are meritless. Therefore, we affirm the summary
dismissal of the petition.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
M CM ULLEN, JJ., joined.

Elijah Truitt, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General, and Dan Hamm, Assistant District
Attorney General, for the appellant, State of Tennessee.

                                         OPINION

                                      Factual Background
       To say that this case is a procedural quagmire is an understatement. On July 10, 2006,
Petitioner pled guilty to possession of a firearm by a felon, case number 2002-A-43; and
possession of greater than .5 grams of cocaine with intent to sell, case number 99-D-2942.
He was sentenced to two years for case number 2002-A-43 and eleven years for case number
99-D-2942. The trial court ordered the sentences to be served consecutively and all to be
served in a community corrections program.

        On March 13, 2007, the trial court filed an amended judgment for case number 2002-
A-43, which was the result of a community corrections violation. In the amended judgment,
the trial court provided that Petitioner was to be incarcerated for 120 days from his arrest on
the violation and he would then be placed back on community corrections. The same
amended judgment was also filed for case number 99-D-2942 on March 26, 2007. On
December 17, 2007, the trial court filed another amended judgment for case number 2002-A-
43 resulting from another community corrections violation. In this amended judgment, the
trial court ordered Petitioner to serve until October 2, 2008, day for day at 100% and then be
placed back on community corrections. The same amended judgement was filed for case
number 99-D-2924 on the same date. On June 6, 2008, an amended judgment was filed in
case number 2002-A-43 which placed Petitioner on community corrections for the balance
of his sentence. The same amended judgment was filed for case number 99-D-2942 on the
same date. Finally, the trial court filed an amended judgment on October 19, 2009, revoking
Petitioner’s community corrections sentence and ordering the previous judgment imposed.
The same amended judgment was filed for case number 99-D-2942. The trial court also
ordered no jail credit for case number 2002-A-43. The trial court did grant Petitioner jail
credit for case number 99-D-2942. The trial court also ordered the sentences to be served
consecutively.

        On October 6, 2011, Petitioner filed a “Motion to Correct Judgment” for case number
99-D-2942. Elijah Truitt v. State, No. M2012-00100-CCA-R3-CD, 2012 WL 4377087, at
*1 (Tenn. Crim. App., at Nashville, Sept. 25, 2012). In this motion, he argued “‘[t]he
amended judgments ordering defendant to serve his eleven year at 35% sentence day for day
at 100% are illegal upon the face.’” Id. The trial court summarily dismissed Petitioner’s
motion because the judgment had not been amended to require 100% service of Petitioner’s
sentence. Petitioner appealed to this Court. Id. On appeal, the State argued that a motion
to correct judgment was not the proper avenue of attack, and that Petitioner should have filed
a petition for writ of habeas corpus. Id. This Court agreed with the State. Id. at *2.
However, this Court identified another issue in that the trial court had not applied credit for
time served on community corrections to the sentence. Id. This Court remanded Petitioner’s
case with “instructions to permit the Petitioner to amend his pleading to one for a writ of
habeas corpus.” Following the amendment of the pleading, the trial court should discern
whether the petitioner was granted credit for time actually spent in a community corrections
program. According to Petitioner’s brief, the trial court entered an amended judgment in
case number 99-D-2942 awarding him credit for time served in community corrections. We



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note however that there is no independent document or pleading in the record confirming this
claim.

        On May 2, 2013, Petitioner filed a Petition for Writ of Habeas Corpus for 2002-A-43
which is the subject of this appeal. Petitioner argued that the trial court enhanced his
sentence from one year to two years and that the trial court did not apply mandatory jail credit
to his sentence that he earned during his time on community corrections. On July 18, 2013,
the habeas corpus court filed an order summarily dismissing the petition. The habeas corpus
court made the following findings:


               Regardless of Petitioner’s failure to follow the statutory filing
       guidelines, he would not be entitled to relief via writ of habeas corpus. He
       contends that the judgment is void due to an explicit indication that he is not
       entitled to pretrial jail credits. Under T.C.A. § 40-23-101(c), defendants are
       entitled to pretrial jail credits for the time served in incarceration prior to
       imposition of judgment in a case. However, “a defendant incarcerated pretrial
       who then receives a consecutive sentence is allowed pretrial jail credits to be
       applied only to the first sentence.” State v. Hobert Dean Davis, No. E2000-
       02879-CCA-R3-CD at *3 (Tenn. Crim. App. at Knoxville, March 4, 2002).

               The Petitioner has already received jail credit for the consecutive
       sentence in case number 99-D-2942, the judgment of which was imposed at
       the time the judgment in this case was entered. To grant such an award would
       essentially result in receiving double jail credits on his sentences, which is not
       permitted. See Timothy L. Dulworth v. Henry Steward, No. W2012-00314-
       CCA-R3-HC at *2 (Tenn. Crim. App. At Jackson, July 9, 2012). This issue
       is therefore without merit.

              Based on the foregoing analysis, the Court is of the opinion that the
       Petitioner has failed to demonstrate that his judgment is either void or that his
       sentence has expired. Therefore, the Petition for Writ of Habeas Corpus is
       hereby respectfully dismissed.


       Appellant appealed the summary dismissal of his petition.




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                                        ANALYSIS

     On appeal, Petitioner argues that he is entitled to credit for his time served on
community corrections and his sentence was illegally enhanced from one year to two years.

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is
the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment
is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant's sentence has expired.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at 83).

        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280
(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of
habeas corpus without the appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that the convictions addressed therein
are void. Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Hickman, 153 S.W.3d at 19-20; Archer, 851 S.W.2d at 165. For the
benefit of individuals such as Petitioner, our legislature has explicitly laid out the formal
requirements for a petition for a writ of habeas corpus at Tennessee Code Annotated section
29-21-107:




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       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner’s behalf, and
       verified by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the
       name of such person, if known, and, if unknown, describing the person with
       as much particularity as practicable;

       (2) The cause or pretense of such restraint according to the best information
       of the applicant, and if it be by virtue of any legal process, a copy thereof shall
       be annexed, or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant's knowledge and
       belief; and

       (4) That it is the first application for the writ, or, is a previous application has
       been made, a copy of the petition and proceedings thereon shall be produced,
       or satisfactory reasons be given for the failure so to do.


“A habeas corpus court may properly choose to dismiss a petition for failing to comply with
the statutory procedural requirements; however, dismissal is not required.” Hickman, 153
S.W.3d at 21.

       We first address Petitioner’s assertion that his sentence is illegal because the trial
court enhanced his sentence for this conviction from one year to two years upon the
revocation of his community corrections sentence. The original judgment for this conviction
clearly states that the sentence is two years for this conviction. Therefore, his assertion is
clearly wrong and there is nothing on the face of the amended judgment to show that it is
void or that his sentence has expired.

       We now turn to Petitioner’s second issue. Petitioner argues that the trial court did not
apply credit for the time he spent on community corrections to his sentence. It is true that
credit for time-served on community corrections is mandatory. Jackson v. Parker, 366
S.W.3d 186, 190 (Tenn. Crim. App. 2011). According to both Petitioner and the trial court,
credit was applied to his eleven-year sentence set out in case number 99-D-2942. As stated


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above, Petitioner has not included the amended judgment for case number 99-D-2942 in the
record on appeal.

       When a defendant has pretrial jail credits to be applied to consecutive sentences, the
credits are applied only to the first sentence that is served. Timothy L. Dulworth v. Henry
Steward, No. W2012-00314-CCA-R3-HC, 2012 WL 2742210, at *2 (Tenn. Crim. App., at
Jackson, July 9, 2012). We think the application of community corrections credits would be
analogous. Therefore, in the case at hand, the credits should be applied to whichever
sentence is served first. The original judgment states that the two-year sentence for case
number 2002-A-43 is to be served consecutively to the eleven-year sentence for case number
99-D-2942. Therefore, any community corrections credits earned before the amended
judgments should be applied to case number 99-D-2942 not case number 2002-A-43.
Therefore, Petitioner has not presented a basis upon which relief can be granted.

       This issue is without merit.

                                      CONCLUSION

       For the foregoing reasons, the summary dismissal of the petition for writ of habeas
corpus is affirmed.


                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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