Charles Hunter v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9807-CR-00316
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JUNE 1999 SESSION July 9, 1999

Cecil W. Crowson Appellate Court Clerk CHARLES K. HUNTER, ) ) NO. 01C01-9807-CR-00316 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR., RICKY BELL, WARDEN, ) JUDGE ) Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

CHARLES K. HUNTER, Pro Se PAUL G. SUMMERS T.D.O.C. No. 163309 Attorney General and Reporter Riverbend Maximum Security Institute Unit 6-A-210 MARVIN E. CLEMENTS, JR. 7475 Cockrill Bend Road KAREN M. YACUZZO Nashville, TN 37209-1010 Assistant Attorneys General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

VICTOR S. JOHNSON III District Attorney General Washington Square 222 Second Avenue N, Ste. 500 Nashville, TN 37201-1649

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

Petitioner, Charles K. Hunter, appeals as of right the summary dismissal of

his petition for writ of habeas corpus. He was indicted for attempted first degree

murder and pled guilty to the amended charge of aggravated assault. The sole

issue is whether his conviction is void since aggravated assault is not a lesser

offense of attempted first degree murder. Since the indictment was amended by

consent to include aggravated assault, we AFFIRM the trial court’s summary

dismissal of the petition.

I

Petitioner was indicted for the offense of attempted first degree murder. On

May 2, 1996, he entered into a plea agreement with the state. The judgment of

conviction reflects the defendant pled guilty to the “amended charge” of aggravated

assault. Petitioner correctly contends that aggravated assault is neither a lesser

included nor a lesser grade offense of attempted first degree murder. See State v.

Trusty, 919 S.W.2d 305, 312 (Tenn. 1996). The state, however, contends the

agreed amendment to the indictment to include aggravated assault cures any

defect. We agree with the state’s position.

II

The right to habeas corpus relief is guaranteed in Article I, § 15 of the

Tennessee Constitution. This extraordinary relief, however, is available only when

it appears upon the face of the judgment, or the record upon which the judgment is

rendered, that the court was without jurisdiction or authority to sentence a

defendant, or that a defendant's sentence has expired. Archer v. State, 851 S.W.2d

157, 164 (Tenn. 1993). If the face of the record shows that the court did not have

jurisdiction, then the judgment is void. Dykes v. Compton, 978 S.W.2d 528, 529

(Tenn. 1998).

2 We must recognize the distinction between void judgments and voidable

judgments. Id. A void judgment is one in which the judgment is facially invalid

because the court did not have the statutory authority to render such judgment.

Archer, 851 S.W.2d at 161. A voidable judgment is one which is facially valid and

requires proof beyond the face of the record or judgment to demonstrate that it is

void. In the latter case, habeas corpus relief is inappropriate. Dykes, 978 S.W.2d

at 529.

Petitioner contends the trial court was without jurisdiction to enter a judgment

of conviction for the offense of aggravated assault. Habeas corpus is an

appropriate vehicle to determine whether the judgment is void for lack of jurisdiction.

Id.

III

The judgment of conviction reflects that petitioner entered a plea of guilty to

aggravated assault based upon an agreed amendment to the indictment. An

indictment “may be amended in all cases with the consent of the defendant.” Tenn

R. Crim. P. 7(b). The judgment is facially valid and is, therefore, not void. Dykes,

978 S.W.2d at 529. The trial court had authority to render the judgment, and

habeas corpus relief is inappropriate. Archer, 851 S.W.2d at 164.

For these reasons the judgment of the trial court is AFFIRMED.

3 ___________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JOSEPH M. TIPTON, JUDGE

____________________________ ALAN E. GLENN, JUDGE