IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
JULY SESSION, 1997 February 4, 1998
Cecil W. Crowson
DENVER JOE MCMATH, ) Appellate Court Clerk
C.C.A. NO. 01C01-9608-CC-00360
)
Appe llant, )
)
) WAYNE COUNTY
VS. )
) HON. JAMES L. WEATHERFORD
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Habeas Corpus)
FOR THE APPELLANT: FOR THE APPELLEE:
JOSEPH L. PENROD JOHN KNOX WALKUP
Assistant Public Defender Attorney General and Reporter
128 North 2nd Street
P. O. Box 1208 KAREN M. YACUZZO
Pulaski, TN 38478 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
MIKE BOTTOMS
District Attorney General
JAMES G. WHITE
District Attorney General
Lawrence County Courthouse
Lawrenceburg, TN 38464
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appe llant, Denver Joe McMath, appeals from the dismissal of his petition
for habeas corpus relief in which he alleged his continued incarceration was
illegal because he had fully served the sentence upon which he was being held.
Appellant specifically alleges that under Tenn. Code Ann. § 49-28-123 (a),
his life sentence was terminated by the imposition of a sentence for a crime
committed while on release.
We affirm the ju dgme nt of the trial co urt.
Appellant was s enten ced to life as a h abitua l offender in 1975. In 1985,
Governor Lamar Alexander granted him a conditional commutation to time
served. While on release, Appellant again ran into co nflict with the law and in
1989, pled guilty to passing a forged instrument and received a two year
sentence. The plea agreement stipulated that the sentence agreed upon w as to
run concurrently with any federal sentence Appellant was serving. The
agreement was s ilent as to whe ther it wa s to run cons ecutive ly or con curren tly
to Appellant’s life sentence under state law. In 1990 Governor Ned McWherter
revoked Appellant’s commutation. The Board of Paroles recommended that the
new two year sentence should begin on December 14, 1992. Governor
McWherter agreed with the Board and on July 31, 1991 signed an order to that
effect.
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Habeas corpus relief is available in Tennessee only when “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 sentence a defendant, or that a defendant’s sentence of imprisonment or other
restraint ha s expired . Archer v. State, 851 S.W.2d 157.
In Willie L ee Fletch er v. Gary L ivesay, et al. (C.C.A. N o. 88-19 7-III,
Davidson Coun ty, filed at Nas hville, December 28, 1988) the petitioner filed a
petition to be relea sed us ing the sa me ratio nal as the Appella nt in the insta nt
case. Fletcher was serving a murder sentence of ninety-nine years. The governor
commuted his sente nce to tim e served and im posed parole. F letcher was
subs eque ntly sentenced to serve one year on a petit larceny conviction. A year
later, the Boa rd of Pard ons an d Paro les order ed Fletch er’s larcen y senten ce to
run from the date of its imposition. Tennessee Code Annotated Section 40-28-
123 provided in pertinent part then, and does now that “an y prison er who is
convicted in this state of a felony, co mm itted while o n parole from a s tate prison,
jail or workhouse, shall serve the remainder of the sentence under which the
prisoner was paroled, or such part of that sentence, as the board may determine
before the prisoner commences serving the sentence received for the felony
comm itted while o n parole .”
Fletcher claimed that because Tennessee Code Annotated Section 40-28-
123 require s a sen tence for an o ffense com mitted while th e priso ner is on pa role
to be served consecutively to the sentence for which the prisoner is on parole, the
action of the parole board had caused the expiration of the ninety-nine year
murder sentence. This Court held that the result of such an argument was
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“prepos terous” a nd “abs urd”. Fletcher, slip op at 3 . Furthe r, this court held that
such a result w ould b e con trary to T enne ssee Rules of Crim inal Pro cedu re Ru le
32(c)(3)(A)(requiring that a sentence for a felony committed while on parole must
be serve d cons ecutively to th e original s entenc e.)
W e apply the holding o f Fletcher to this case and affirm the judgment of
the trial cou rt.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOHN H. PEAY, JUDGE
___________________________________
WILLIAM M. BARKER, JUDGE
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