Opinion

Dennis Wayne Merriweather v. State of Tennessee

Court
Court of Criminal Appeals of Tennessee
Filed
Jun 11, 2009
Status
Published
On the bench
Judge Jerry Smith
Cited by
0 cases
Authority
More cited than 29.4%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 13, 2009

DENNIS WAYNE MERRIWEATHER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Hickman County

No. 08-5045C Robbie Beal, Judge

No. M2008-01848-CCA-R3-HC - Filed June 11, 2009

Appellant, Dennis Wayne Merriweather, filed a petition for the writ of habeas corpus in which he

alleged that his fifteen year sentence for selling controlled substances within 1,000 feet of a school

renders the judgment imposed as a result of his guilty plea void because the judgment provides the

sentence is to be served at 100%. Because we find the judgment is not void, we hold the habeas

court properly dismissed the habeas corpus petition. Accordingly, the judgment of the lower court

is affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.

WEDEMEYER, JJ., joined.

Dennis Wayne Merriweather, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

and Ron Davis, District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 1999, Appellant pled guilty to selling more than twenty-six grams of cocaine

within 1,000 feet of a school, a violation of Tennessee Code Annotated section 39-17-417(i)(5) with

punishment subject to enhancement pursuant to Tennessee Code Annotated section 39-17-432. He

was sentenced to fifteen years in the Tennessee Department of Correction. Sale of cocaine within

1,000 feet of a school zone is a Class A felony and the term of imprisonment prescribed by statute

is fifteen to sixty years. T.C.A. § 40-35-111(b)(1). Therefore, Appellant received the minimum

sentence prescribed for the offense he committed. The judgment indicates that the term of

imprisonment is to be served at 100% incarceration.

Tennessee Code Annotated section 39-17-432, the Drug Free School Act, provides in

pertinent part:

(c) Notwithstanding any other provision of law or the sentence imposed by

the court to the contrary, a defendant sentenced for a violation of subsection (b) shall

be required to serve at least the minimum sentence for the defendant's appropriate

range of sentence. Any sentence reduction credits the defendant may be eligible for

or earn shall not operate to permit or allow the release of the defendant prior to full

service of the minimum sentence.

(d) Notwithstanding the sentence imposed by the court, the provisions of title

40, chapter 35, part 5, relative to release eligibility status and parole, shall not apply

to or authorize the release of a defendant sentenced for a violation of subsection (b)

prior to service of the entire minimum sentence for the defendant’s appropriate range

of sentence.

(e) Nothing in the provisions of title 38, chapter 1, part 4 shall give either the

governor or the board of probation and parole the authority to release or cause the

release of a defendant sentenced for a violation of subsection (b) prior to service of

the entire minimum sentence for the defendant's appropriate range of sentence.

Despite Appellant’s contention that the sentence he received to be served in its entirety is void

because it is not authorized by Tennessee Code Annotated section 40-35-101, the Tennessee

Criminal Sentencing Reform Act of 1989, the above quoted statute, mandates a 100% service of

Appellant’s sentence.

Appellant’s reliance on this Court’s decision in Terrance Lavar Davis v. State, No. M2009-

00011-CCA-RM-HC, 2009 WL 96177 (Tenn. Crim. App., at Nashville, Apr. 8, 2009) is misplaced.

Unlike Appellant herein, in Terrance Lavar Davis the Appellant had agreed to a sentence above the

minimum in the range for possessing more than twenty-six grams of cocaine in a school zone and

agreed the sentence would be served at 100%. He subsequently filed a petition for habeas corpus

relief claiming that his sentence was illegal because the Drug Free School Zone statute does not

authorize a 100% sentence other than for the minimum sentence for the offense. This Court agreed

and found that the sentence to which the Appellant agreed does not exist anywhere in any of our

sentencing laws and was therefore void. Terrance Lavar Davis, 2009 WL 96177, at *4. In the

instant case, however, Appellant received the minimum sentence and agreed to the 100% service

which is required by law.

In summary, Appellant agreed to service of the minimum sentence for his offense at 100%.

The Drug Free School Zone statute requires service at 100%. There is absolutely nothing illegal

about Appellant’s sentence. If a petition for habeas corpus relief fails on its face to state a cognizable

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claim for the writ a trial court may summarily dismiss the petition. See T.C.A. § 29-21-109;

Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007). The instant petition falls into this category.

CONCLUSION

For the foregoing reasons the judgment of the lower court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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