IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED FEBRUARY SESS ION, 1999 May 5, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk DARRELL BUTCH LAWS, ) C.C.A. NO. 03C01-9807-CR-00225 ) Appe llant, ) ) JOHNSON COUNTY V. ) ) ) HON. LYNN W. BROWN, JUDGE STATE OF TE NNE SSE E, ) ) Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT: FOR THE APPELLEE: DARR ELL B UTC H LAW S, pro se JOHN KNOX WALKUP T.D.O.C. #90595 Attorney General & Reporter P.O. Box 5000 Mountain City, TN 37683 ELIZABETH B. MARNEY Assistant Attorney General 2nd Floor, Cordell Hull Building Fifth Avenue North Nashville, TN 37243 JOE C. CR UM LEY, J R. District Attorney General Alf Taylor Road Johnson City, TN 37601

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Petitioner, D arrell Butc h Laws , appea ls as of right the trial co urt’s dismissal of his petition for writ of habeas corpus. After a careful review of the record, w e affirm the judgm ent of the tria l court.

Petitioner filed a pro se petition for writ o f habe as co rpus c hallen ging h is incarceration on convictions of first degree murder with a life sentence, of aggravated kidnapin g with a 25 year sen tence, a nd of robbery with a 10 year sentence. Petitioner specifically claimed that the Tennessee Department of Correction unilaterally allowed the rob bery conviction to run consecutively to the murder conviction in violation of the trial court’s order and Petitioner’s plea agreem ent. Petitioner also claimed that the alleged action by the Department of Correction is a violation of double jeopardy. In dismissing Petitioner’s petition, the trial court stated the following: The petitioner a sserts tha t the Department of Correction has restruc tured h is life sen tence by runn ing Case No. 11005-5 consecutive to his life sentence. However, the question of wheth er the De partme nt of Corre ction is prope rly calculating his sentence cannot be raised by habeas corpu s. To c hallenge such reductions the petitioner must proceed under the Uniform A dministrative Procedures Act, T.C.A. § 4 -5-101 et seq . in the Chanc ery Court for Davidson C ounty, Tenn essee . In any ev ent, his life sentence has obviously not expired.

Relief by habeas corpus is availa ble in th is state only when it appears on the face of the judgm ent or record that the trial court was without jurisdiction to convict or sentence the petitioner, or that the sentence of imprisonment has otherwise expired. The relief requested by the petitioner in this cause is not available by habeas corpus.

-2- It is a well-established principle of law that the reme dy of ha beas corpu s is limited in its nature a nd its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993); Passa rella v. State , 891 S.W .2d 619, 626 (Tenn . Crim. A pp. 199 4). In Tennessee, habe as co rpus re lief is ava ilable only if “‘it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting court wa s without ju risdiction or a uthority to se ntence a defen dant, or that a defendant’s sentence of imprisonment or other restraint has expired.” Archer, 851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of establishing either a void judgment or an illegal confinement by a preponderance of the evidenc e. Pass arella, 891 S.W.2d at 627. Moreo ver, where a judgment is not void, but is merely voidable, such judgm ent m ay not b e colla terally attack ed in a suit for habe as corp us relief. Id.

In this appeal, Petitioner specifically argues that the Tennessee Department of Correction has “taken [his] [c]ourt [o]rdered [s]entence by the Criminal Court of Claiborne County, and severed a [c]harge of [s]imple [r]obbery, [t]o run [c]onsecutive with [his] life [s]enten ce,” and that the D epartm ent of Corre ction h as “inte ntiona lly conspired and re-s tructured [his] sente nce.” The claims prese nted by Petitioner a re not cogniza ble und er the ha beas c orpus s tatute. See Tenn. Code Ann. § 29-21-101 - 130. Even though Petitioner alleges that his sentence has expired, a challenge regarding calculation of his sentence, as discussed above, cannot be raised by habeas corpus. We note that the trial court was correct in stating that any challenge to the way the D epartmen t of Correction calculates Petitioner’s sentence must proceed under the Uniform Adm inistrative Ac t in Chan cery Co urt. See Tenn. Code Ann. § 4-5-101 et seq. Petitioner does not allege in his petition that the convicting court was without jurisdiction or authority to sentence him. This Court has held that -3- if it is clear from the face of the petition that the petitioner is not entitled to relief, then the trial cou rt is not re quired to hold a hea ring or in quire in to the a llegations in the petition, but m ay dism iss the p etition sum marily. Pass arella, 891 S.W.2d at 627.

W e agre e with th e trial co urt’s dis miss al of Pe titioner’s petition .

Accordingly, the judgment of the trial court is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ L. T. LAFFERTY, Senior Judge

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