Charles Hunter v. State ( 2010 )

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).
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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.
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___________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
JOSEPH M. TIPTON, JUDGE
____________________________
ALAN E. GLENN, JUDGE
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