        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                       NOVEMB ER SESSION, 1998          January 28, 1999

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
RONALD DEE WATT,                )   C.C.A. NO. 03C01-9609-CR-00343
                                )
      Appe llant,               )
                                )
                                )   ROANE COUNTY
VS.                             )
                                )   HON. E. EUGENE EBLEN
STATE OF TENNESSEE,             )   JUDGE
                                )
      Appellee.                 )   (Habeas Corpus)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF ROANE COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

KENNETH F. IRVINE, JR.              JOHN KNOX WALKUP
606 W. Main Street, Suite 350       Attorney General and Reporter
Knoxville, TN 37901-0084
                                    MICH AEL J . FAHE Y, II
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    CHARLES E. HAWK
                                    District Attorney General

                                    ROGER DE LP
                                    Assistant District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                OPINION

      The Defendant, Ronald Dee Watt, appeals as of right from the Roane

Coun ty Criminal Court’s dismissal of his petition for habeas corpus relief. The

issue on appeal is whether the trial court erred by summarily dismissing the

petition without appointing couns el or cond ucting an evidentiary hearing . We

reverse the order dismissing the petition and remand this case for further

proceedings.



      W e will first attempt to sum marize, from the record before u s, the eve nts

giving rise to the Defendant’s petition for writ of habeas corpus. On April 17,

1980, the Defendant pleaded guilty to one count of armed robbery with a

sentence of ten years, two counts of concealing stolen property with a sentence

of three years on each count, and two counts of arson with a sentence o f one

year on each count. A ll sentenc es were ordered to be serv ed con secutive to

each other, for an effective sentence of e ighteen years. T he sentenc es were

ordered to be s erved conc urren tly with a sen tence the De fenda nt was serving in

the federal pen itentiary for bank robb ery.



      The Defendant was subsequently transferred back to federal custody for

the service of his sentences. At some point thereafter he was released on pa role

from federal custody. Subsequent to being released on parole, the Defendant

was apparently charged with additional fede ral crimes and wa s returne d to

federal custody. By order entered on January 16, 1992, the Criminal Court for

Roane Coun ty, Tenn essee issued a capias fo r the arres t of the Defendant “for



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service of the portion of his sentence still owed to the Tennessee Department of

Correc tion.”



       On May 14, 1996 the Defendant filed a petition for writ of habeas corpus

in the Criminal Court for Roane County. The petition alleged that he was an

inmate in the federal penitentiary. He alleged that he was suffering collateral

consequences from b eing ille gally an d unc onstitu tionally detained by virtue of the

capias issued by the Roane County Criminal Court on January 16, 1992. In

addition to his allegations of various constitutional violations, the Defendant

alleged that his Tennessee sentence was illegal and void because he was

sentenced pursuant to “an agreement between his court-appointed counsel and

attorney genera l that [the trial cou rt] was powerless to order under Tenn. Code

Ann. § 3 9-1-703 .”



       The State filed a motion to dismiss the habeas corpus petition on the

grounds (1) that T enne ssee Code Anno tated § 29-21 -102 e xclude d pers ons in

federal custody from the benefit of State proceedings for a writ of habeas corpus,

and (2) that the trial court had n o auth ority to o rder th e Def enda nt’s release from

federal custody. The trial court issued an order dismissing the petition on the

grounds that it failed to state a cause of action for whic h relief c ould be granted

because the Defendant was in federal custody and § 29-21-102 “excludes

persons in federal custody from benefit of filing writ of habea s corpu s in State

proceeding . . . [and] . . . State of Tennessee has no authority to order release

from federal custody even if grounds for relief existed.” It is from this order of

dismissal that the Defendant appeals.




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      The trial court dismissed the habeas corpus petition because the

Defendant is in federal c ustody. Tennessee’s habeas corpus law is statutory and

begins with the following provision:

            Any person imprisoned or restrained of his liberty, under any
      pretense whatsoever, except in cases specified in § 29-21-102, may
      prosec ute a writ of habe as corp us, to inquire into the cause of such
      imprison ment a nd restra int.

Tenn. Code Ann. § 29-21-101. The exception referred to in the above sectio n

provides as follows:

             Persons committed or detained by virtue of process issued by
      a court o f the U nited S tates, o r a judg e there of, in cases where such
      judges or courts have exclusive jurisdiction under the laws of the
      United States, or have acquired exclusive jurisdiction by the
      commencement of suits in such courts, are not entitled to the
      benefits o f this writ.

Id. § 29-21-102.


      W e read this statute to clearly provide that a State judge has no authority

to order the release of a person who has been committed or is being detained,

imprisoned, or restraine d of his liberty by virtue of an order of a federal co urt. In

the petition filed herein, however, the Defendant is seeking to test the validity of

the restraint on his liberty being caused by the capias for his arrest issued by the

Criminal Court of Ro ane Cou nty, Tennessee.           We do not believe that the

Defe ndan t’s status as a federal prisoner deprives the Criminal Court of Roane

Coun ty of any a uthority to inquire into the cause of the restraint on the

Defe ndan t’s liberty as a result of the capias for the Defendant’s arrest which was

issued by the Roane County C riminal Court in a p revious order. W e therefore

conclude that the trial court was in error by summarily dismissing the habeas

corpus pe tition on the ground s that the Defen dant was a federal prisoner.




                                         -4-
      Although it is not entirely clear in the Defendant’s pro se habeas corpus

petition, the Defendant primarily argues that his sentence is illegal because it was

ordered to be served concurrently with a federal sentence when the law required

that the sentence be served under the control and supervision of the State of

Tennessee. At the time the Defendant was convicted of armed robbery, robbe ry

accomplished by the use o f a dea dly weapon was a Class X felony. Tenn. Code

Ann. § 39-1-702 (repealed 1989). The law provided that a sentence for a Class

X felony would “[t]erminate or expire only after service o f the entire sentence, day

for day, under the control and su pervision of the state o f Tennes see.” Id. § 39-1-

703 (repealed 1989). The Defendant questions whether the trial judge had the

legal authority to orde r his sentence to run concurrently with the federal sentence

or whether he was required by the Class X felony law to order the Tennessee

sentences to be served in the state penitentiary, presu mably after he was

released from federal custody.



      Tennessee courts have held that wh en the law requires the trial cour t to

impose a consecutive sentence on a defendant convicted of a crime committed

while on work release, the trial court is without jurisdiction or autho rity to enter a

judgment against a defendant for a concu rrent sen tence. Henderson v. State ex

rel. Lance, 419 S.W .2d 176 (Te nn. 1967); Taylor v. Morgan, 909 S.W.2d 17, 20

(Tenn. Crim. A pp. 199 5); see also Archer v. State, 851 S.W.2d 157, 163 (Tenn.

1993) (noting that because the trial court in Lance was witho ut autho rity to render

a concurrent se ntence wh en statutorily required to make the sentence

consecutive, the judgm ent was facially void , and a writ of ha beas corpu s cou ld

issue to release Lance from his guilty plea).




                                         -5-
       W e also note that the Defendant’s effective eighteen-year sentence was

imposed on April 17 , 1980. The sente nce w as ord ered to be se rved co ncurre ntly

with a fede ral sen tence . Assu ming that the conc urren t sente nce w as a le gal

sentence, it becomes obvious that more than eighteen years has now passed

since the sentence was imposed. Although there may well be reasons why the

sentence has not expired, the Defend ant arg ues o n app eal tha t on its fa ce it

appears that the sentence has expired.



       Based on our review of the record and our understanding of the law, we do

not believe that the trial judge should have dismissed the Defendant’s petition for

habeas corpus relief without appointing counsel and allowing the Defendant the

opportu nity to present his petition on the merits. If the Defendant’s eighteen-year

sentence, ordered to be se rved co ncurre ntly with a federal sentence, is an illegal

sentence, it is clear that the court h as the autho rity to cor rect it at any time, even

if it has otherwise becom e final. State v. Burkha rt, 566 S.W.2d 871, 873 (Tenn.

1978). An illeg al sen tence is a nullity. Id. If the sentence was illegal, the status

of the prosecution in Roane County would apparently return to the sentencing

stage. At that stage, further proceedings on the Defendant’s plea would be

governed by Rule 11 of the Tennessee Rules of Criminal Proced ure. See Taylor

v. Morgan, 909 S.W .2d 17, 20 (T enn. Crim. A pp. 1995).



       W e also point out that even if the Defendant can establish that he received

an illegal sente nce, he may ne vertheles s be ineligib le for habeas corpus relief.

Obviously, if the Defendant is lawfully confined under authority of a federal court

order, the Tennessee court may not order him discharged from custody. If his

sentence is illegal and thus void, he remains subject to his original pending

                                          -6-
charges in Roa ne Co unty. If his sente nce h as exp ired, he may w ell rem ain in

lawful custody as a federal prisoner. In any event, we believe the Defendant may

proceed with his habeas corpus proceeding to determine whether his Tennessee

sentence is illegal or has expired.



      The judgment of the trial court dismissing the Defendant’s habeas corpus

petition is reversed.   This case is remanded to the trial court for further

proceedings.



                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JAMES CURWOOD WITT, JR., JUDGE


___________________________________
L.T. LAFFERTY, SENIOR JUDGE




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