Opinion

Rudell Funzie v. State of Tennessee

Court
Court of Criminal Appeals of Tennessee
Filed
Jul 9, 2007
Status
Published
On the bench
Presiding Judge Joseph M. Tipton
Cited by
0 cases
Authority
More cited than 29.4%

The opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 10, 2007

RUDELL FUNZIE v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lake County

No. 05-CR-8737 R. Lee Moore, Jr., Judge

No. W2006-00174-CCA-R3-HC - Filed July 9, 2007

The petitioner appeals the denial of habeas corpus relief by the Lake County Circuit Court from his

imprisonment for three 1982 armed robbery convictions. On appeal, the petitioner claims that he

was sentenced to serve concurrent twenty-five year sentences at thirty-five percent and that because

he has served that percentage of the sentences, his sentences have expired. We hold that the trial

court properly dismissed the petition and affirm its judgment.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E.

GLENN , JJ., joined.

Jim W. Horner, District Public Defender, and Patrick R. McGill, Assistant Public Defender, for the

appellant, Rudell Funzie.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;

and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

According to allegations of the petition, the petitioner was sentenced on October 6, 1982, to

three concurrent twenty-five year sentences. The petitioner alleged that his sentences expired in

2001 and that he was being illegally restrained in the Department of Correction.

At the hearing on the petition, the state presented the testimony of Carla Hopper, a record

clerk with the Department of Correction.1 She testified that the petitioner was released on parole on

December 9, 1991, that he absconded from parole on March 6, 1995, that a violation warrant issued

on September 14, 2004, and that his parole was revoked on October 8, 2004. She said that “[t]he

1

Ms. Hopper was not identified on the record at the hearing other than as “the lady from the prison,” although

a subpoena in the technical record identifies her as a record clerk with the Department of Correction.

Board of Paroles added a delinquent time back to his sentence.” She said his sentence expiration

date was June 18, 2013.

The petitioner testified at the hearing. He claimed that various sentencing credits operated

to reduce his sentence and that before he was paroled in 1991, he had already served his sentences

in their entirety. He referred to various documents, which were introduced as exhibits at the hearing.

The trial court denied relief, determining that the petitioner’s claim related to sentencing credits and

not expiration of his sentences.

In this state, “[a]ny person imprisoned or restrained of his liberty, under any pretense

whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to

inquire into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101; Church v. State,

987 S.W.2d 855, 857 (Tenn. Crim. App. 1998). The purpose of a habeas corpus petition is to

contest void and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993)

(citing State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968)). Habeas

corpus relief is available only when it appears on the face of the judgment or the record that the trial

court was without jurisdiction to convict or sentence the defendant or that his sentence has expired.

Archer, 851 S.W.2d at 164. The burden is on the petitioner to establish that the judgment is void or

that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290,

291-92 (1964).

In the trial court, the petitioner claimed that various calculations and reductions resulted in

his having already served his sentences. On appeal, he asserts that he has served the required thirty-

five percent of his twenty-five year sentences, which he argues equates to expired sentences. The

petitioner’s appellate position is contrary to the law. A defendant has no right to the privilege of

parole. See T.C.A. §§ 40-28-117(a); 40-35-503(b). The authority to grant parole is vested

exclusively in the board of probation and parole, and the granting of parole is a discretionary matter.

Doyle v. Hampton, 207 Tenn. 399, 403, 340 S.W.2d 891, 893 (1960). Further, a prisoner does not

have an absolute right to be released on parole when he has served the minimum term for his

conviction. State ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839, 840-41 (1969).

As this court has often recognized, a habeas corpus action is not the proper means by which

to challenge the denial of prison privileges and related internal prison matters that have no bearing

on the validity of the restraining conviction, the resulting sentence, or the expiration of the sentence.

See, e.g., State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986). Issues relative to the

Department of Correction’s calculation of sentencing credits and parole dates are handled through

the Administrative Procedures Act. See T.C.A. §§ 4-5-101 to -325; Brigham v. Lack, 755 S.W.2d

469, 471 (Tenn. Crim. App. 1988). As such, the trial court properly dismissed the petition.

In consideration of the foregoing and the record as a whole, the judgment of the trial court

is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING 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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