State v. Donald Biggs

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 17, 1992
• Docket: 02C01-9901-CC-00017
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DONALD W. BIGGS, ) ) Petitioner, ) C. C. A. NO. 02C01-9901-CC-00017 ) vs. ) LAKE COUNTY

STATE OF TENNESSEE, ) ) No. 98-7865 FILED ) Respondent. ) July 7, 1999

Cecil Crowson, Jr. Appellate Court Clerk ORDER

This matter is before the Court upon motion of the state to affirm the

judgment of the trial court by order rather than formal opinion. See Rule 20, Rules of

the Court of Criminal Appeals. This case represents an appeal from the trial court’s

dismissal of the petitioner’s petition for writ of habeas corpus. On December 17, 1992,

the petitioner pled guilty to second degree murder and was sentenced to thirty-five

years as a standard range I offender. On March 30, 1993, the trial court filed an

amended judgment sentencing the petitioner as a range II offender. No appeal was

taken from either judgment. In his present petition, the petitioner claims that his

conviction and sentence is void because he did not receive notice of the amended

judgment. The trial court found that the petitioner was not entitled to habeas corpus

relief and dismissed the petition.

Habeas corpus relief is available in Tennessee only when “it appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered” that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). The petitioner’s

sentence has not expired. Additionally, the judgment clearly establishes that the

convicting court had jurisdiction over this case. The petitioner’s claim, if meritorious,

would merely make the amended judgment voidable, not void. See Passarella v. State,

891 S.W.2d 619 (Tenn. Crim. App. 1994). The trial court properly determined the petitioner is not entitled to relief in this instance. The petitioner raises for the first time

on appeal that he received ineffective assistance of counsel during his guilty plea.

Despite being waived, this issue is not an appropriate matter for habeas corpus review.

Accordingly, for the reasons stated above, it is hereby ORDERED that the

state’s motion is granted and the judgment of the trial court is affirmed in accordance

with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be

taxed to the state.

______________________________ JOE G. RILEY, JUDGE

______________________________ DAVID G. HAYES, JUDGE

______________________________ JOHN EVERETT WILLIAMS, JUDGE