State v. Donald Biggs

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
2