        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                             AT KNOXVILLE                      June 22, 1999

                                                           Cecil Crowson, Jr.
                        APRIL SESSION, 1999                Appellate C ourt
                                                               Clerk



JOSHUA DEAN FORD,            )   C.C.A. NO. 03C01-9810-CR-00378
                             )
      Appellee,              )
                             )
                             )   SULLIVAN COUNTY
VS.                          )
                             )   HON. PHYLLIS H. MILLER
STATE OF TENNESSEE,          )   JUDGE
                             )
      Appe llant.            )   (Petition for Writ of Habeas Corpus)




FOR THE APPELLANT:               FOR THE APPELLEE:

JOSHUA DEAN FORD                 JOHN KNOX WALKUP
Pro Se                           Attorney General and Reporter
NECC Annex, P. O. Box 5000
Mountain City, TN 37683          ELLEN H. POLLACK
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243

                                 GREELEY WELLES
                                 District Attorney General
                                 Sullivan Co. Justice Center
                                 Blountville, TN 37617



ORDER FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE
                                    ORDER


      The petitioner, Joshua Dean Ford, appea ls the orde r of the Su llivan Cou nty

Criminal Court dismissing his petition for writ of habeas corpus. The petitioner

is presently serving consecutive sentences of nine (9) years for the offense of

vehicular homicide and one (1) yea r for the offens e of failu re to ap pear. In his

pro se petition for writ of habeas corpus, he claims that his conviction for failure

to appear is void, and the sentence he rece ived for that c onviction is illegal. The

trial court summarily dismissed the petition without appointment of counsel. After

a thoroug h review o f the record before th is Court, we affirm the trial cou rt’s

judgment pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

      It is   well-established that habeas corpus relief is available only if “‘it

appears upon the face of the judgment or the record of the proceedings upon

which the judgm ent is rend ered,’ 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. 199 3)(citation omitted in origina l). The habea s petitioner bears the

burden of demonstrating by a preponderance of the evidence that the judgment

of convic tion is void or that his term of confine ment h as expire d. Passarella v.

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

      The petitioner d oes no t challeng e the lega lity of his conviction for vehicular

homicide, nor do es he asse rt that his nine (9) year sentence for that conviction

has expire d. He m erely claims that his conviction for failure to appear is void.

Howeve r, “the only relief that can be given a prisoner in a state habeas corpus

proceeding is release.” State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App.


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1986). The petitioner’s sentences for vehicular homicide and failure to appear

were ordered to run consecutively.       Therefore, even if the pe titioner c ould

demo nstrate that his conviction for failure to app ear is void, he would not be

entitled to imm ediate releas e until he can demonstrate that this conviction is the

sole basis for his detention.     Since the petitioner is in the custody of the

Tennessee Department of Correction for his vehicular homicide conviction, the

petition is premature and fails to qualify as warranting a writ of habeas corpus.

      Because the petition failed to state a claim which w ould en title him to

habeas corpus relief, the trial court properly dismissed the petition. See Tenn.

Code Ann. § 2 9-21-10 9. Acco rdingly, we affirm the ju dgme nt of the trial court

pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. Costs of the

appeal will be paid by the State of Tennessee as it appears that the petition er is

indigent.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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