         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                         Assigned on Briefs November 19, 2003

              JAMES RAY BARTLETT v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Wayne County
                Nos. 283-90, 284-90, 285-90, 286-90 Stella Hargrove, Judge



                     No. M2003-00571-CCA-R3-HC - Filed May 13, 2004


The petitioner, James Ray Barlett, filed a petition for writ of habeas corpus in the Wayne County
Circuit Court, alleging that his sentence was expired. After examining the record, the trial court
dismissed the petition. The petitioner appeals. Upon review of the record and the parties’ briefs,
we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODA LL, J., joined.

James Ray Bartlett, Clifton, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       On November 2, 1990, the petitioner pled guilty in the Moore County Circuit Court to two
counts of aggravated burglary. He received a four-year sentence on each count, which sentences
were to be served concurrently. Additionally, the petitioner was given credit for thirty days he had
already served.

       Subsequently, on November 15, 1990, the petitioner pled guilty in the Lincoln County Circuit
Court to four counts of theft of property over $1000. He received a sentence of four years
incarceration on each count. The trial court ordered that the sentences be served consecutively to
each other and to the Moore County sentences for a total effective sentence of twenty years
incarceration. The petitioner was given 180 days jail credit.
        On October 20, 1992, the Lincoln County Circuit Court granted the petitioner’s motion for
probation. As a condition of his probation, the petitioner was to be supervised by a community
corrections program from October 20, 1992, until October 20, 2005. However, on December 13,
1994, the petitioner’s probation was revoked and he was ordered to “serve the balance” in
confinement.1 Additionally, the Lincoln County Circuit Court entered an order denying the
petitioner any sentencing credits earned while on probation.

        Thereafter, the petitioner filed a petition for writ of habeas corpus in the Wayne County
Circuit Court on September 25, 2002. In his petition, the petitioner claimed that his sentences were
fully expired. In support of his claim, the petitioner alleged that, upon granting him probation, the
Lincoln County Circuit Court reduced his sentence to thirteen years. The petitioner contended that
he has served over thirteen years of his sentence; accordingly, his sentence has expired. The Wayne
County Circuit Court dismissed the petition for writ of habeas corpus, and the petitioner appeals.

                                                    II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. See McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial
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, § 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). However, “[s]uch relief is
available only when it appears from the face of the judgment or the record of the judgment or the
record of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322;
see also Tenn. Code Ann. § 29-21-101 (2000). 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) (citations omitted).

        As we have noted, the record reflects that on October 20, 1992, the Lincoln County Circuit
Court entered two orders granting the petitioner probation and instructing that the petitioner serve
his probation in the community corrections program until October 20, 2005. On December 21, 1994,
the court entered an order finding the petitioner “guilty of violation of the terms of his probation with



         1
            The probation revocation warrant filed against the petitioner maintained that he amassed new convictions
while on probation. The warrant stated that the petitioner was convicted of one count of driving under the influence, one
count of driving on a revo ked license, five counts of reckless driving, and one count o f evading arrest.

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Community Corrections and ordered the [petitioner] to serve the balance of the sentence heretofore
imposed.”

        It is well-established that upon finding by a preponderance of the evidence that a defendant
has violated the terms of his probation, a trial court is authorized to order the defendant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e)
(2003); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The Lincoln County Circuit Court’s order
reflects that the petitioner’s probation was revoked and he was ordered to “serve the balance.” In
other words, the court, as authorized, ordered the petitioner to serve the balance of his original
twenty-year sentence. The petitioner has not yet completed service of this twenty-year sentence.
Accordingly, the Wayne County Circuit Court did not err in dismissing the petitioner’s petition for
writ of habeas corpus as he failed to prove that his sentence had expired.

        On appeal, the petitioner also raises another issue. Following the revocation of the
petitioner’s probation, the Lincoln County Circuit Court entered an order stating, “[I]t appearing to
the Court that the [petitioner’s] probation with Community Corrections has been revoked, it is
ordered by the Court that the [petitioner] shall not be allowed any credit with Community
Corrections.” The petitioner alleges, and the State concedes, that the court erred in denying him
credit for this time. We disagree.

       This court has previously explained:

                       Community corrections is a totally different sentencing
               alternative than probation. During the term of probation, the
               “sentence” is “suspended.” A defendant is not entitled to any credits
               toward the sentence while on probation prior to a revocation. On the
               other hand, a defendant is entitled to credits toward the sentence
               while on community corrections prior to a revocation.

Michael W. Carpenter v. State, No. M2002-02187-CCA-R3-PC, 2003 WL 21024584, at *1 (Tenn.
Crim. App. at Nashville, May 7, 2003) (citations omitted), perm. to appeal granted, (Tenn. 2003);
see also Tenn. Code Ann. §§ 40-35-310 and 40-36-106(e)(3)(B) (2003). Moreover, this court has
further found distinction between a sentence of community corrections and placement in a
community corrections program as a condition of probation. See State v. Bowling, 958 S.W.2d 362,
364 (Tenn. Crim. App. 1997); State v. Bruce Cole, No. 02C01-9708-CC-00324, 1998 WL 305375,
at *2 (Tenn. Crim. App. at Jackson, June 11, 1998). As such, we have specified that “[a]n individual
who is placed on probation is not entitled to jail credit during the period of probationary status.
Accordingly, the probationer who is placed in a community corrections program as a condition of
probation is not entitled to sentence credit for time spent under community corrections supervision.”
Cole, No. 02C01-9708-CC-00324, 1998 WL 305375, at *2 (footnote omitted). Thus, the trial court
did not err in denying the petitioner credit for the time spent on probation under the supervision of
the community corrections program. See State v. George C. Peery, III, No. E2002-01682-CCA-R3-
CD, 2003 WL 21383220, at *6 (Tenn. Crim. App. at Knoxville, June 13, 2003); State v. William


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Roy Gray, No. W2002-00460-CCA-R3-CD, 2002 WL 31322539, at *1 (Tenn. Crim. App. at
Jackson, Oct. 14, 2002); State v. Kenneth Paul Godwin, No. 03C01-9710-CC-00479, 1998 WL
827215, at *1 (Tenn. Crim. App. at Knoxville, Dec. 1, 1998).

                                       III. Conclusion

      Finding no reversible error, we affirm the judgment of the trial court.




                                                    ___________________________________
                                                    NORMA McGEE OGLE, JUDGE




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