        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                     FEBRUARY SESS ION, 1998          May 5, 1999

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
DONALD R. JONES,          )    C.C.A. NO. 03C01-9706-CR-00206
                          )
      Appe llant,         )
                          )
                          )    CARTER COUNTY
VS.                       )
                          )    HON. LYNN W. BROWN
STATE OF TENNESSEE,       )    JUDGE
                          )
      Appellee.           )    (Habea s Corpu s Relief)




FOR THE APPELLANT:             FOR THE APPELLEE:

DONALD R. JONES                JOHN KNOX WALKUP
Pro Se                         Attorney General and Reporter
Carter County Annex
Caller #1                      ELLEN H. POLLACK
Roan Mountain, TN 37687        Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               DAVID CROCKETT
                               District Attorney General

                               KEN NET H C. B ALDW IN
                               Assistant District Attorney
                               Carter County Justice Center
                               Elizabethton, TN 37643



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION



       On February 10, 1997, Appellant Donald R. Jones filed a petition for

habeas corpus relief in the Carter County Criminal Court. On February 25,

1997 , the trial c ourt dis miss ed the petition beca use it fa iled to s tate a c laim

upon which relief co uld be grante d. App ellant c hallen ges th e dism issal of h is

petition. Afte r a review o f the record , we affirm th e judgm ent of the tria l court.



                                  I. BACKGROUND




       On January 9, 1969, Appellant was convicted of first degree murder and

was given a n inety-nine year sen tence. Appe llant appealed a nd this Court

revers ed Ap pellan t’s con viction b ased on erro neou s jury ins truction s. On A pril

22, 197 0, Appe llant pled g uilty to first degre e murd er and w as given a life

sentence. Appellant did not appeal this conviction or sentence.



       Appellant filed his petition for habeas corpus relief on February 10,

1997, alleging that he was the victim of prosecutorial and judicial

vindictiveness. Specifically, Appellant claimed that he was the victim of

prosecutorial vindictiveness because the assistant prosecutor was a relative of

the victim. Appellant alleges the trial judge was vindictive because Appellant

received a longer senten ce after a s uccess ful appea l.



       The trial court dismissed the petition on February 25, 1997, because

habeas corpus relief is only available when it appears on the face of the


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record that the court was without jurisdiction to convict or sentence a

defendant or that the sentence had expired. The trial court also concluded

that alth ough Appe llant’s cla ims w ould b e app ropria te for de termin ation if h is

petition was considered to be a petition for post-conviction relief, Appellant

would still not be entitled to any relief because his claims were barred by the

statute of lim itations.



                           II. HABEAS CORPUS RELIEF




       It is well-e stablis hed in Ten ness ee tha t habe as co rpus re lief is only

available when a conviction is void because the convicting court was without

jurisdic tion or a uthority to sen tence a defe ndan t, or that a defen dant’s

senten ce has expired a nd the d efenda nt is being illegally restrain ed. Archer v.

State, 851 S.W .2d 157 , 164 (T enn. 19 93); Johns v. Bowlen, 942 S.W.2d 544,

546 (Tenn. Crim. App. 1996). As this Court has previously stated:

       A judgment of a court of general jurisdiction is presumed to be valid.
       This p resum ption is said to be co nclus ive unle ss the judgm ent is
       impeached by the record. If the court rendering a judgment has
       jurisdiction o f the perso n, the sub ject-ma tter, and ha s the auth ority to
       make the challenged judgment, the judgment is voidable, not void; and
       the judgment may not be collaterally attacked in a suit for habeas
       corpus relief.

Passa rella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994) (citations

omitted).



       Appellant’s petition for habeas corpus relief simply does not contain any

allegation that the se ntencing court wa s without ju risdiction to a ccept his guilty

plea or to sentence him neither is there any allegation that his sentence has

expired. Ind eed, no thing in the record w ould sup port any s uch alleg ations.

                                           -3-
Here, Appellant’s claims that he was the victim of prosecutorial and judicial

vindictiveness amount at most to an assertion that the judgment was voidable,

not that the judgment was void. Therefore, the trial court correctly determined

that Appellant had failed to either allege or present a ground that was

cogniza ble in a su it for habea s corpu s relief.



                         III. POST-CONVICTION RELIEF




       Initially, we note that the trial court properly determined whether

Appellant would have been entitled to relief if his petition for habeas corpus

relief was tre ated as a petition for post-con viction relief. See Tenn. Code Ann.

§ 40-30 -205(c) (1 997); Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim.

App. 1993 ).



       W e also conc lude th at the tria l court p roper ly deter mine d that A ppella nt

would not have been entitled to relief even if his petition was treated as a

petition for post-conviction relief. At the time of Appellant’s guilty plea and

sentencing in 1970, there was no limitation as to when a post-conviction

petition could be filed. However, in 1986, The Tennessee Legislature enacted

a statute of limitations which stated that

       A prisoner in custody under sentence of a court of this state must
       petition for post-conviction relief under this chap ter within three (3) years
       of the date of the final ac tion of the h ighest sta te appe llate court to
       which an appeal is taken or consideration of such petition shall be
       barred.

Tenn. Code Ann. § 40-30-102 (1986) (effective July 1, 1986). This new

limitations period ap plied to existing cause s prospectively from the effective

date of the statute. Carter v. S tate, 952 S.W .2d 417, 418 (Tenn. 199 7);

                                           -4-
Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Because

Appellant’s conviction and sentence became final in 1970, the statute of

limitations expired in Appellant’s case on July 1, 1989.1 Therefore, the trial

court cor rectly deter mined that even if Appellan t’s petition wa s consid ered to

be a p ost-co nviction petition , he wo uld no t be en titled to re lief bec ause his

claims were barred by the statute of limitations.



        Accordingly, the judgment of the trial court is AFFIRMED.



                                            ____________________________________
                                            JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
WILLIAM B. ACREE, SENIOR JUDGE




        1
          On May 10, 1995, the legislature enacted the Post-Conviction Procedure Act of 1995, which
included a one year statute of limitations and limited the number of petitions that could be filed in any
particular c ase. See Tenn. Code Ann. § 40-30-202 (1995). The Tennessee Supreme Court has held that
the new post-conviction act did not provide petitioners for whom the statute of limitations had expired
under th e old pos t-conviction act any ad ditional time in which to file p etitions for p ost-con viction relief.
Carter, 952 S.W.2d at 418.

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