             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE              FILED
                        NOVEMBER 1998 SESSION
                                                         December 11, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
WILLIAM JONES,             )
                           )      C.C.A. No. 01C01-9711-CR-00548
          Appellant,       )
                           )      Davidson County
v.                         )
                           )      Honorable J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE,        )
                           )      (Habeas Corpus)
          Appellee.        )




FOR THE APPELLANT:                FOR THE APPELLEE:

Gregory D. Smith                  John Knox Walkup
One Public Square                 Attorney General & Reporter
Suite 321                         425 Fifth Avenue, North
Clarksville, TN 37040             Nashville, TN 37243-0493

                                  Kim R. Helper
                                  Assistant Attorney General
                                  425 Fifth Avenue, North
                                  Nashville, TN 37243-0493




OPINION FILED: ______________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                         OPINION

       The appellant, William Jones, appeals as of right from the summary dismissal of his

petition for a writ of habeas corpus by the Davidson County Criminal Court. The petitioner

alleges in his petition that his sentence of thirty years is illegal and void in that the jury

sentenced the appellant to confinement without the possibility of parole for the offense of

kidnapping, not kidnapping for robbery. After a review of the entire record, the history of

this petition, the briefs of all parties, and applicable law, we affirm the trial court’s dismissal.



                                            HISTORY



       This petition for habeas corpus relief reflects the appellant’s ongoing battle with the

State of Tennessee since 1978, when he was found guilty of simple robbery and

kidnapping by a Haywood County jury. The jury imposed sentences of ten to fifteen years

for simple robbery and thirty years for kidnapping, Tenn. Code Ann. § 39-2603, without the

possibility of parole. On direct appeal, this Court affirmed the appellant’s convictions.

William Jones v. State, Haywood County No. 2 (Tenn. Crim. App., Jackson, April 26,

1979). In this case, one issue for appeal was the trial judge’s refusal to charge the jury on

the lesser offense of simple kidnapping, Tenn. Code Ann. § 39-2601. This Court stated:

“The evidence was unrefuted that a kidnapping was committed in connection with Mrs.

Curlin’s robbery. It does not suggest that a simple kidnapping occurred. We find no error

in the instructions.” Id., slip op. at 5. The record also reflects that the appellant is serving

concurrent sentences of sixty-two years for his convictions in Shelby County of murder

second degree and six offenses of robbery with a deadly weapon. These sentences were

ordered to run concurrently with the Haywood County sentences for simple robbery and

kidnapping.



       The present petition was filed in July, 1992 in the Davidson County Criminal Court.

In his complaint, the petitioner alleges that his sentence for kidnapping is void in that courts

and juries did not have jurisdiction to exercise authority, control, or command over the

Board of Paroles. Upon the state’s motion to dismiss, the trial court dismissed the petition

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for habeas corpus relief. This Court, in William Jones v. State, No. 01C01-9308-CR-00272

(Tenn. Crim. App., Nashville, July 14, 1995), affirmed the dismissal. 1 In its opinion, this

Court stated:

           The petitioner alleges that his sentence for kidnapping is void
           because he claims that the courts and juries did not have jurisdiction
           to exercise authority or control or command over the Board of
           Paroles. We do not need to decide this, it was previously raised by
           the petitioner and decided by this Court. State v. William Jones, No.
           02C01-9406-CC-00134 (Tenn. Crim. App., Jackson, March 22,
           1995).


       Upon remand, the state filed a motion to dismiss the petition for habeas corpus relief

on the basis the petitioner’s sentence had expired and he was no longer in custody for the

offense of kidnapping. As part of its motion to dismiss, the state filed an affidavit of Faye

Claud, Manager of Sentence Information Services, Tennessee Department of Correction.

The affidavit stated the sentence of thirty years without parole imposed on May 1, 1978 for

the offense of kidnapping in Haywood County Case No. 7099 had expired. In granting the

state’s motion to dismiss, the trial court held:


           [A]s a result of the expiration of the petitioner’s kidnapping
           sentence, the Court is of the opinion that the issue remanded for
           determination is now moot, as the case no longer presents a live
           controversy for the Court to resolve and from which the petitioner
           can obtain relief. (citation omitted).


The trial court also noted that the petitioner’s convictions out of Shelby County had not

expired and the petitioner was still subject to confinement.



       In his brief, the petitioner takes issue with the trial court’s order in dismissing the

petition in lieu of a remand hearing as ordered by the Supreme Court, citing State v.

Jefferson, 938 S.W.2d 1, 21 (Tenn. Crim. App.), per. app. denied (Tenn. 1996); State v.

Pendergrass, 795 S.W.2d 150, 155-56 (Tenn. Crim. App. 1989), per. app. denied (Tenn.

1990). We agree with the holdings in these two cases as to the duty of intermediate



       1
        The Supreme Court granted the petitioner’s application for permission to appeal.
In State v. Jones, No. 01C01-9308-CR-00272 (Tenn., Nashville, February 12, 1996), the
Supreme Court, in a per curiam order, remanded the cause “for a hearing to determine
whether the petitioner was convicted of kidnapping or kidnapping for ransom so as to
determine whether the sentence imposed was void.”

                                              3
appellate courts and trial courts in remand orders imposed by the Supreme Court.

However, in this cause, we do not believe the trial court’s failure to conduct a remand

hearing would create chaos as urged by the petitioner.



       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 was without jurisdiction or authority to sentence a defendant, or that a

defendant’s sentence of imprisonment or other restraint has expired.” Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). We believe the trial court

was correct in dismissing the petition in this cause. Since the petitioner was no longer in

custody for the offense of kidnapping, the question as to whether the conviction is void is

moot. The Court of Appeals addressed a similar question in McIntyre v. Traughber, 884

S.W.2d 134, 137 (Tenn. App. 1994). That Court held “an appeal concerning the legality

of a prisoner’s incarceration becomes moot upon the prisoner’s unconditional release,”

citing State ex rel. Lewis v. State, 208 Tenn. 534, 538, 347 S.W.2d 47, 49 (1961).



       Tennessee courts recognize exceptions to the mootness rule. The two most

common exceptions are:        (1) issues of great public interest and importance to the

administration of justice, and (2) issues capable of repetition yet evading review. We do

not believe the petitioner’s claim falls within these two exceptions. McIntyre v. Traughber,

884 S.W.2d at 137. We recognize that the petitioner has not been unconditionally

released from custody due to his Shelby County convictions. The only issue remanded by

the Tennessee Supreme Court was for the trial court to determine the nature of the

petitioner’s kidnapping conviction in order to determine if the petitioner was serving a

proper sentence. Whatever sentence the petitioner was serving, that sentence has expired

and there is no longer a justiciable issue to be determined.



       In conclusion, we find the trial court was correct in dismissing the petition for habeas

corpus relief and affirm the judgment.




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                                ________________________________________
                                L. T. LAFFERTY, SENIOR JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




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