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Wisdom v. Lee

Court of Criminal Appeals of Tennessee, Knoxville

March 14, 2017

ODELL WISDOM
v.
RANDY LEE, WARDEN and STATE OF TENNESSEE

          Assigned on Briefs January 18, 2017

         Appeal from the Circuit Court for Johnson County No. CC-16-CR-81 Lisa N. Rice, Judge

         The Petitioner, Odell Wisdom, appeals as of right from the Johnson County Circuit Court's summary dismissal of his petition for writ of habeas corpus. He claims entitlement to habeas corpus relief, alleging that his separate convictions for contempt and failure to appear violate double jeopardy principles. Following our review, we conclude that the Petitioner has failed to state a cognizable claim for relief and, therefore, affirm the summary dismissal of his petition.

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

          Odell Wisdom, Mountain City, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter, and Robert W. Wilson, Assistant Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., J., joined. Robert H. Montgomery, Jr., J., not participating.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         We glean the following facts from the record. On February 19, 2011, the Petitioner was directed to report to the Sullivan County Jail to begin serving an effective eight-year sentence (case number S57, 413) for three felony convictions involving the sale of cocaine within 1000 feet of a drug-free school zone. See Tenn. Code Ann. §§ 39-17-417, -432. After the Petitioner failed to report, he was indicted for felony failure to appear (case number S59, 091). See Tenn. Code Ann. § 39-16-609. On July 28, 2011, he pled guilty as charged to failure to appear and received a five-year sentence as a Range III, persistent offender. In addition, the Petitioner had been charged with contempt of court in case number S57, 413 "for his alleged failure to report to the Sullivan County Jail on February 19, 2011, to begin serving an eight-year sentence with 100% RED in the Tennessee Department of Correction." The Petitioner pled guilty to contempt on October 13, 2011, and received a ten-day sentence of unsupervised probation.[1] Pursuant to the terms of the agreement in case number S59, 091, the Petitioner's five-year sentence for failure to appear was to be served consecutively to the eight-year sentence but concurrently with the ten-day sentence. Other than alignment of the sentences, the failure to appear plea agreement did not reference the convictions in case number S57, 413.

         On June 8, 2016, the Petitioner, pro se, filed a petition for writ of habeas corpus, asserting that his convictions for failure to appear and contempt were void being imposed in violation of his double jeopardy rights. The Petitioner noted therein that this was his second petition for writ of habeas corpus; the previous petition having been dismissed because the Petitioner filed the pleading in the county of conviction rather than in the county of incarceration.

         The State filed a motion to summarily dismiss the petition on July 5, 2016. The State first argued that the Petitioner had failed to comply with the procedural requirements for habeas corpus relief by failing to attach any judgment of conviction and the prior habeas corpus petition. See Tenn. Code Ann. § 29-21-107(b)(2), (4) (outlining the mandatory statutory procedural requirements for petitions for habeas corpus relief). Turning to the substance of the petition, the State asserted that the Petitioner had failed to state a cognizable ground for relief because double jeopardy violations do not render a conviction void. The Petitioner, on July 15, 2016, filed a response to the State's motion to dismiss, attaching his prior habeas corpus petition, his failure to appear judgment form, and the order holding him in contempt of court. The habeas corpus court summarily dismissed the petition by written order signed on July 21, 2016, [2] concluding simply "that the respondent's motion is well-taken and should be granted." The Petitioner filed a notice of appeal therefrom.

         ANALYSIS

          On appeal, the Petitioner argues that the habeas corpus court erred by dismissing his petition for failing to follow the procedural requirements.[3] The Petitioner further contends that his dual convictions for failure ...


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