Belk v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 23, 1997
• Docket: 03C01-9703-CR-00109
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED NOVEMBER 1997 SESSION December 23, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

BRUCE BELK, ) ) APPELLANT, ) ) No. 03-C-01-9703-CR-00109 ) ) Morgan County v. ) ) E. Eugene Eblen, Judge ) ) (Habeas Corpus) CHARLES JONES, WARDEN ) ) APPELLEE. )

FOR THE APPELLANT: FOR THE APPELLEE:

Robert N. Meeks John Knox Walkup Attorney at Law Attorney General & Reporter P.O. Box 8086 500 Charlotte Avenue Chattanooga, TN 37414 Nashville, TN 37243-0497

Michael J. Fahey, II Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

Charles E. Hawk District Attorney General P.O. Box 703 Kingston, TN 37763-0703

Frank A. Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703

OPINION FILED:____________________________________

AFFIRMED

Joe B. Jones, Presiding Judge OPINION

The appellant, Bruce Belk1 (petitioner), appeals as of right from a judgment of the

trial court denying his action for habeas corpus relief. He presents one issue for review:

“[T]he charging indictment failed to contain or state the essential mens rea elements of the

offense as required by T.C.A. 40-13-202, thus rendering appellant’s subsequent conviction

and plea agreement void.” After a thorough review of the record, the briefs submitted by

the parties, and the law governing the issue presented for review, it is the opinion of this

court that the judgment of the trial court should be affirmed.

The remedy sought by the petitioner, habeas corpus, was not available to him. The

Hamilton County judgment is not void for the reasons outlined in the petition for the writ

of habeas corpus. When the court rendering the judgment in question has jurisdiction of

the defendant’s person, jurisdiction of the subject matter (the crime), and has the authority

to make the challenged judgment, the judgment is voidable, not void. Passarella v. State,

891 S.W.2d 619, 627 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). Thus, the only

remedy available to the petitioner was post-conviction relief.

This court parenthetically notes that if the petitioner had pursued the post-conviction

remedy, he would not be entitled to relief. The Tennessee Supreme Court recently held

the indictment, found to be defective in State v. Roger Dale Hill, Sr., Wayne County No.

01-C-01-9508-CC-00267, 1996 WL 346941 (Tenn. Crim. App., Nashville, June 20, 1996),

was sufficient to allege the offense of aggravated rape, the same offense alleged in this

case. State v. Hill, _____ S.W.2d _____ (Tenn. 1997). The indictment in this case is

almost identical to the indictment in Hill. They charge the same offense. Thus, the

indictment in this case properly alleged the offense of aggravated rape.

____________________________________________ JOE B. JONES, PRESIDING JUDGE

1 The appellant was indicted under the name “Bruce D. Belk.” “Bruce Belk” and “Bruce D. Belk” are the same person.

2 CONCUR:

______________________________________ PAUL G. SUMMERS, JUDGE

______________________________________ CURWOOD WITT, JUDGE