Oliphant v. State, C

• Citation: 806 S.W.2d 215
• Decision Date: 24 January 1991
• Docket Number: No. C,C
• Parties: James Robert OLIPHANT, Appellant, v. STATE of Tennessee, Appellee. C.A. 271. 806 S.W.2d 215
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 215

806 S.W.2d 215

James Robert OLIPHANT, Appellant, v. STATE of Tennessee, Appellee.

No. C.C.A. 271.

806 S.W.2d 215

Court of Criminal Appeals of Tennessee at Knoxville.

Jan. 24, 1991.

Permission to Appeal Denied by Supreme

Court March 11, 1991.

Francis X. Santore, Jr., Greeneville, for appellant.

Charles W. Burson, Atty. Gen. and Gordon W. Smith, Asst. Atty. Gen., Nashville, David Crockett, Dist. Atty. Gen. and William R. Mooney, Asst. Dist. Atty. Gen., Johnson City, for appellee.

OPINION

TIPTON, Judge.

The petitioner, James Robert Oliphant, appeals as of right from the denial of his post-conviction petitions by the Criminal Court of Washington County. He is serving a life sentence as an habitual criminal following his 1986 conviction for burglary of an automobile. That conviction was affirmed on direct appeal in State v. Oliphant, No. 228, Washington Co., 1987 WL 18383 (Tenn.Crim.App., Knoxville, Oct. 14, 1987) and permission to appeal was denied by the Tennessee Supreme Court on December 28, 1987.

The various petitions seek to void the 1986 conviction and previous convictions used to establish the habitual criminality. His claims can be grouped into three categories:

(1) Pinellas County, Florida--three convictions upon nolo contendere pleas in 1977 and 1980 for burglary, involuntary sexual battery and a second burglary were not knowingly, voluntarily and intelligently made.

(2) Washington County, Tennessee--three convictions upon guilty pleas in 1984 for second degree burglary, receiving stolen property under $200.00 and concealing stolen property over $200.00 were not knowingly, voluntarily and intelligently made.

(3) Washington County, Tennessee--the 1986 conviction for burglary of an automobile resulted from the ineffective assistance of counsel.

The trial court ¹ held that it had no jurisdiction to determine the validity of the Florida convictions, that the Tennessee guilty pleas were taken in substantial compliance with the law, and that the petitioner received the effective assistance of counsel. We agree with the trial court's findings.

The petitioner asserts that the Tennessee courts should have jurisdiction to determine the validity of the Florida convictions which were used to enhance the sentence in his Tennessee case. Further, he claims that it violated due process and equal protection to require him to attack these convictions in Florida. The petitioner submitted transcripts reflecting the nolo contendere plea hearings which occurred in Florida. He, likewise, proved that he filed a motion for post-conviction relief in Florida on July 24, 1989, attacking the convictions. The record reflects that the Circuit Court for Pinellas County, Florida, dismissed the motion as untimely since the judgment became final more than two years before the filing of the motion. Thus, the petitioner's motion was time-barred in Florida.

The Post-Conviction Procedure Act was enacted to allow prisoners a procedure for relief when their conviction is void or voidable because of abridgement of a Tennessee or Federal constitutional right. T.C.A. Sec. 40-30-105. Its authority and limitations are derived solely from the legislature and are not constitutionally mandated. The history of the Act's development shows that its purpose is to provide for collateral attack on Tennessee convictions. See Anderson, Post-Conviction in Tennessee--Fourteen Years of Judicial Administration under the Post-Conviction Procedure Act, 48 Tenn.L.Rev. 605 (1981).

By its terms, the Act requires the petition to be filed "with the clerk of the court where the conviction occurred." T.C.A. Sec. 40-30-103(a). Filing in the county of conviction is a jurisdictional prerequisite and no other county has jurisdiction to hear such a petition. Luttrell v. State, 644 S.W.2d 408 (Tenn.Crim.App.1982). Thus, Washington County had no jurisdiction to determine a petition from another Tennessee county, much less one from a sister state.

It is true that the use of prior convictions to enhance punishment may bring into question the constitutional validity of the prior convictions. In State v. Prince, 781 S.W.2d 846, 851 (Tenn.1989), our Supreme Court stated that an habitual criminal conviction with resulting life sentence is void if the prior convictions upon which it is based are constitutionally invalid. However, Prince outlined the procedural requirements in order to have the issue of the validity of the enhancing convictions resolved in post-conviction cases. In this regard, it is clear that a prisoner, in his attack on the habitual criminal conviction, may submit evidence showing that the prior judgment of conviction is (1) invalid on its face ² or (2) has been held invalid by judgment of a court having jurisdiction to void the conviction. See State v. Prince, supra, at 851. Otherwise, the initial post-conviction attack on a facially valid enhancing conviction cannot be maintained in the habitual criminal post-conviction case and must be brought in the court where the conviction occurred. State v. Prince, supra, at 852; T.C.A. Sec. 40-30-103(a).

The petitioner fails to explain how his rights to equal protection under the law and to due process have been violated other than saying that T.C.A. Sec. 40-30-103(a) forces him to attack the Florida convictions in a forum in which the attack appears to be time-barred, when the plea transcripts clearly show constitutionally infirm pleas. His contentions are misplaced for several reasons.

First, by his own admission, he had the right to attack his prior convictions in Florida, but failed to do so in the time allowed. The Tennessee Post-Conviction Procedure Act did not prohibit him from timely attacking these convictions. Second, there is a legitimate, rational basis for limiting a post-conviction case to the county in which the conviction occurred as required in T.C.A. Sec. 40-30-103(a). It fosters administrative convenience in that the record of the original proceedings and many witnesses are more convenient and more readily available to the parties. Luttrell v. State, supra, 644 S.W.2d at 410.

In cases such as this, where a record of a plea and resulting conviction does not appear to show full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the state is entitled to produce extrinsic evidence and witnesses, including the petitioner's trial attorney, the prosecutor, and the trial judge, to show that the plea was in fact intelligently and voluntarily entered. See Dunn v. Simmons, 877 F.2d 1275,...