IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 GARY DEWAYNE DONALD, ) C.C.A. NO. 01C01-9710-CR-00481 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR. STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Co nviction Re lief)

FOR THE APPELLANT: FOR THE APPELLEE: GARY DEW AYNE DONALD JOHN KNOX WALKUP Pro Se Attorney General and Reporter TDOC #221716 Lake C o. Reg . Corr. Fa cility TIMOTHY F. BEHAN Tiptonville, TN 38079 Assistant Attorney General Fifth Avenu e North Nashville, TN 37243-0493 VICTOR S. JOHNSON District Attorney General Washington Square Building 2nd Av enue N orth Nashville, TN 37201

ORDER FILED ________________________ AFFIRMED PURSU ANT TO RU LE 20 JERRY L. SMITH, JUDGE ORDER

On May 4, 1993 , Appellant Ga ry Dewayn e Donald pleaded guilty in the Davidson Coun ty Crim inal Court to second degree murder. He waived the sentencing range pursuant to State v. M ahler, 735 S.W .2d 226 (Te nn. 1987).

Appellant was sentenced as a Ran ge I standard o ffender to fifty years incarceration with the Tennessee Department of Correction. On appeal, he presen ts the following issue for o ur review: whethe r the trial court erred in dismissing Appellant's petition for the writ of habeas co rpus or post-conviction relief.

After a review of the record, we affirm the judg ment of the trial cou rt pursuant to Court of Criminal Appeals Rule 20.

On March 12, 199 7, Appellant filed his pro se petition for writ of habeas corpus or, in the alternative, post-conviction relief in the Davidson C ounty Crimina l Court. The trial co urt dism issed the petition witho ut a hearing on May 15, 1997. Both in his petition and on appeal, Appellant alleges the following: (1) Appellant's guilty plea was not entered knowingly and voluntarily; (2) Ap pellan t receive d ineffe ctive as sistan ce of c ouns el; (3) Appellant agreed to an illegal sentence not permitted by Tenn. Code Ann. § 40-35-112, as that section does not allow a defen dant to be senten ced to fifty years inca rceration with percent release eligibility; and (4) The trial court misapplied certain enhancement and mitigating factors.

In Tenn essee , it is well- settled law tha t the rem edy of h abea s corp us is limited both in sc ope an d in relief. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In criminal cases, habeas corpus is available only where the judgment is void or the term of imprisonment has expired. Passa rella v. State , 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ).

-2 - The habeas petitioner bears the burden of demonstrating by a preponderance of the evidence that the judgment of conviction is void or that his term of confinement has exp ired. Id. If the petitioner establishes by a preponderance of the evidence either that his conviction is void o r that his term of confinement has expired, he can obtain im media te release . Warren v. State, 740 S.W.2d 427, 428 (Tenn. C rim. App. 198 6).

Appe llant’s complaint would at most make his conviction and sentence voidable, not void . Furthe rmor e, he n eglec ted to file his pe tition in the most convenient court to his place of confinement as required by Tenn. Code Ann. § 29-21-105.1 See G ouldin v. S tate, C.C.A. No. 0 2C01-9 605-CR -00145, Shelby Coun ty (Tenn. Crim . App., Jacks on, Fe bruar y 27, 19 97). H ence , the pe tition fails to qualify as warranting a writ of habeas corpus.

Alternatively, were we to treat this petition as one for post-conviction relief, it is barred by the statute of lim itations. Prio r to the ado ption of the recent P ost- Conviction Procedure Act, petitions like the present one had to be filed with in three years of the date of the fina l action of the highest s tate app ellate cou rt to which an appeal was ta ken. Tenn . Code An n. § 40-30-10 2 (1995, Re pl.).

According ly, Appellant's statute o f limitations for the filing of a petition for post- conviction relief began to run on May 4, 1993 and expired three years later on May 4, 1996. However, the new Post-Conviction Procedure Act, which took effect on May 10, 1995, subsequently shortened the three-year statute of limitations to one year. Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996 ).

When the new Act took effect, the previous three-year statute of limitations had not expired for Appellant. Because the three-year statute of limitations had not

Accor ding to his b rief Appe llant is incarce rated in La ke Co unty Reg ional corre ctional fac ility locatedat Tiptonville, Tennessee.

-3 - expired, Appe llant's right to petition for post-conviction relief survived under the new Act. Accord ingly, Appellant had one year from the effective date of the new Act--May 10, 199 5--in which to file for post-c onviction re lief. Albert H olston v. State, C.C.A. No. 02C01-9609-CR-00298, She lby Cou nty (Ten n. Crim. A pp., Jackson. July 28, 1997). Appellant filed his petition on Marc h 12, 1997, appro ximate ly ten mo nths after th e expiration of the one -year per iod. We conclude that the trial court properly dismissed the March 12, 1997 petition as being barred by the statute of limitations.

With respect to Appellant's third and fourth allegations, we need only point out that in a post-conviction or habeas corpus proceeding, this Court does not review a s entenc e. State v. Bryant, 805 S.W .2d 762, 763 (Tenn. 199 1).

According ly, we affirm the trial court's judgment pursuant to Court of Crimina l Appea ls Rule 2 0.

____________________________________ JERRY L. SMITH, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAYES, JUDGE

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