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 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.

-2- 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

-3-