Brown v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: August 17, 1998
• Docket: 03C01-9707-CR-00280
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1998 August 17, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk MICKEY A. BROWN, ) C.C.A. NO. 03C01-9707-CR-00280 ) Appe llant, ) ) ) JOHNSON COUNTY VS. ) ) HON. LYNN W. BROWN STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Habeas Corpus)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF JOHNSON COUN TY

FOR THE APPELLANT: FOR THE APPELLEE:

MICKEY A. BROWN, PRO SE JOHN KNOX WALKUP 130138 NECX Attorney General and Reporter P.O. Box 5000 Mountain City, TN 37683 SANDY C. PATRICK Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

DAVID E. CROCKETT District Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defendant, Mickey A. Brown, appeals as of right from the dismissal of

his petition for habeas corpus relief. T he De fenda nt is an inma te in the custody

of the Department of Correction. According to his petition, on July 26, 1985, he

pleaded guilty to and was convicted of one c ount o f assa ult with inte nt to co mm it

murder in the first degree and was sentenced to a prison term of twenty (20)

years. In this pro se appeal, Defendant contends th at his co nviction is void

because the indictment was fatally defective due to the fact that the district

attorney gene ral failed to sign the indictme nt. Th e trial co urt sum marily

dismissed the ha beas corpu s petitio n, findin g that it failed to state a claim upon

which re lief can be granted . We affirm the ju dgme nt of the trial co urt.

Habeas corpus relief is available only when a convicting court is without

jurisdiction or authority to sentence a de fendant or wh en that defend ant’s term

of imprisonment or restraint has expired. Archer v. State, 851 S.W.2d 157, 164

(Tenn. 19 93).

The Defendant vigorously asserts that the trial court was without

jurisdiction to sentence him because his conviction was void due to the fact that

1 the indictment did not contain the signature of the district attorney general.

1 The Defendant relies on State v. Walker, 54 S.W.2d 966, 967 (Tenn. 1932), as authority for the proposition that an indictment not signed by the district attorney is void. In Walker, it appears that an assistant district attorney, without specifically being told or instructed to do so, signed or printed the district attorney’s name on an indictment. On

-2- During the pendency of this appeal, the State supplemented the reco rd with

certified copies of the indictment at issue. Although the three-count indictment

does not contain the district attorney’s signature at the end of each count, the

indictment does contain the signature of the district attorney at the end of the last

count of the in dictm ent. T he co unts w ere co nsec utively num bered and it is quite

logical to reason that the district attorney’s signature was intended to cover all the

counts conta ined in the indictment. In State v. Lo ckett, our suprem e court

explained, “It is not essential that the signature of the officer should be placed at

the end of the indictment. It is sufficient if it appear on some other part of the

paper, provided it appear beyond doubt that the attestation relates to the

indictment and every part thereof, and identifies the same as the act and

accusation of the government, done through its sworn officer.” 50 Tenn. (3

Heisk.) 274-75 (1871); see also Steve Carro ll v. Howard Carlton, Warden, C.C.A.

No. 03C01-9611-CR-00420, Johnson County (Tenn. Crim. App., Knoxville, Jan.

21, 199 8). W e cann ot conclu de that the indictme nt was d efective.

In addition, we agree with the trial court’s decision that the petition failed

to state g round s upo n whic h relie f could be granted. Defenses and objections

based on defec ts in the ind ictme nt mu st be ra ised p rior to tria l, unles s the c laim

relates to the failure of the trial court to have jurisdiction or failure of the

indictment to charg e an offen se. Ten n. R. Crim . P. 12(b)(2 ). Notwithstanding the

fact that we have concluded the signature in the case sub judice to be proper,

this Court has con sistently held that a district attorney’s failure to sign an

the facts of that case, the supreme court stated that the indictment was “void when reported.” This court has noted “that this case should be strictly limited to its facts, construed in conjunction with the circumstances and statutes in existence at that time, and not in the light of present day conditions, evolving case law, and the statutes presently in effect.” State v. Taylor, 653 S.W.2d 757, 759 (Tenn. Crim. App. 1983).

-3- indictment would n ot deprive the trial cour t of jurisdiction . See, e.g., State v. Roy

Danny Mayo, C.C.A. No. 01C01-9308-CC-00287, Cheatham County (Tenn. Crim.

App., Nashv ille, Oct. 20, 199 4); State v. Anthony Nixon a/k/a “Dirt”, et. al, C.C.A.

No. 02C01-9 612-CC-00484, Lauderdale County (Tenn. Crim. App., Jackson,

Dec. 3, 1997 ); Ricky S . Cotton v. State, C.C.A. No. 03C01-9611-CR-00422,

Johnson County (Tenn. Crim. App., Knoxville, Dec. 23 , 1997); William P erry

Thompson v. Howard Carlton, Warden, C.C.A. No. 03C01-9611-CR-00395,

Johnson County (Tenn. C rim. App., Kn oxville, Jan. 22, 1998). W e therefore

conclude that the failure to raise the issue prior to trial constitutes a waiver of the

issue.

The judgment of the trial court is accordingly affirmed.

___________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ JOSEPH M. TIPTON, JUDGE

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