State v. Michael South

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 17, 1997
• Docket: 02C01-9610-CC-00325
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED OCTOBER 1997 SESSION October 17, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk MICHAEL R. SOUTH, ) C.C.A. No. 02C01-9610-CC-00325 Appellant, ) ) Lake County V. ) ) Honorable Joe G. Riley, Jr., Judge ) BILLY COMPTON, WARDEN, ) ) (Habeas Corpus-Aggravated Rape) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

Michael R. South, Pro se John Knox Walkup Route 1, Box 330 Attorney General & Reporter Tiptonville, TN 38079-9775 Kenneth W. Rucker Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-4351

C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, Michael R. South, pled guilty to aggravated rape. He was

sentenced to twenty years incarceration in the Tennessee Department of

Correction. He, thereafter, filed a petition for habeas corpus relief. In his petition

he alleged that the indictment against him was insufficient for failing to allege a

mens rea. He contends his conviction is void. The trial court dismissed the

petition finding that it was not proper for habeas corpus review. The trial court

based this finding on the fact that the appellant’s conviction was not void on its

face and that his sentence had not expired. He appeals this dismissal. Upon

review, we affirm.

The appellant contends that the indictment against him did not sufficiently

allege the mens rea for aggravated rape.1 The appellant bases his theory on

State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App., at Nashville, filed

June 20, 1996). We note that several panels of this Court have refused to follow

Hill and that it is currently pending review by the Tennessee Supreme Court.2

In Tennessee an indictment must (1) inform the defendant of the precise

charges; (2) enable the trial court to enter an appropriate judgment and sentence

upon conviction; and (3) protect the defendant against double jeopardy. State v.

Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). It must be stated in ordinary and

concise language so that a person of common understanding will know what is

intended. Warden v. State, 381 S.W.2d 244 (Tenn. 1964).

The majority of this panel declines to follow Hill. We find that the

appellant’s indictment sufficiently alleged the elements of aggravated rape and

was constitutionally sound. He was fully apprised of the charges against him in

ordinary and concise language. The appellant’s indictment gave the convicting

1 The indictm ent against the appe llant stated that he: “did unlaw fully and coerciv ely, while armed with a w eapon, to wit: a knife, sex ually penetrate [the vic tim], in violation of T enn. Code An n. § 39-13-502.”

2 For exam ple, State v. Wilson, No. 03C01-9511-CC-00355 (Tenn. Crim. App. at Knoxville, filed Mar. 25, 199 7); State v. Burrell , No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxville, filed Feb. 11, 1997).

-2- court an adequate basis for subject matter jurisdiction. Therefore, the

appellant’s conviction is not void and is improper for habeas corpus review.

Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

__________________________ JOHN H. PEAY, Judge

__________________________ DAVID G. HAYES, Judge

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