Jerry L. Johns v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
March 9, 2000
JANUARY 2000 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
JERRY L. JOHNS, )
)
Appellant, ) No. E1999-00260-CCA-R3-CD
)
) Morgan County
v. )
) Honorable E. Eugene Eblen, Judge
)
STATE OF TENNESSEE, ) (Habeas corpus)
)
Appellee. )
For the Appellant: For the Appellee:
Joe H. Walker Michael E. Moore
District Public Defender Solicitor General
and and
Bernard R. Sargent R. Stephen Jobe
Assistant Public Defender Assistant Attorney General of Tennessee
Post Office Box 334 and
Harriman, TN 37748-0334 Michael J. Fahey, II
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Jerry L. Johns, appeals as of right from the Morgan County
Criminal Court’s denial of habeas corpus relief. The petitioner is presently serving an
effective seventy-three-year sentence for his 1987 convictions for felonious assault with
intent to commit first degree murder resulting in bodily injury, aggravated kidnapping,
and armed robbery. This court affirmed the petitioner’s judgments of conviction on
appeal. State v. Jerry Leon Johns, No.1145, Knox County (Tenn. Crim. App. July 22,
1988). The petitioner contends that he is entitled to habeas corpus relief because the
convicting court lacked jurisdiction to impose any sentence for a Class X felony and
because the court minutes are unsigned. We affirm the trial court’s denial of habeas
corpus relief.
A petition for the writ of habeas corpus may be brought if the judgment is
void or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
If the convicting court lacked jurisdiction or authority to render the judgment, then the
judgment is void. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851
S.W.2d at 164. The petitioner was convicted in the Knox County Criminal Court for
offenses occurring in Knox County. “Original jurisdiction of criminal actions is
committed to the . . . criminal courts . . . .” Tenn. Code Ann. § 40-1-107. The trial court
obviously had jurisdiction over the subject matter of the petitioner’s case.
The petitioner contends that the trial court did not have jurisdiction or
authority to impose a sentence for a Class X felony because at the time of his
conviction, all Class X sentencing provisions had been repealed by the Tennessee
Reform Act of 1982 and the Comprehensive Correction Improvement Act of 1985. A
“sentence is void and illegal only if it is in direct contravention of a statute which is in
existence at the time the sentence was imposed.” Taylor v. State, 995 S.W.2d 78, 84-
85 (Tenn. 1999). The petitioner was convicted on March 5, 1987, and sentenced on
April 10, 1987. At the time of the petitioner’s convictions, aggravated kidnapping,
robbery by means of a deadly weapon, and assault with intent to commit murder
resulting in bodily injury were Class X felonies. Tenn. Code Ann. § 39-1-702 (repealed
1989).
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The Tennessee Reform Act of 1982 stated that it governed the sentence,
release eligibility and manner of service of Class X felonies committed on or after July
1, 1982. Tenn. Code Ann. § 40-35-112 (b)(1)-(2) (repealed 1989). The
Comprehensive Correction Improvement Act of 1985 applied the provisions of the
Tennessee Reform Act of 1982 regarding the release eligibility date, manner of service
and of release, and parole to defendants committing Class X felonies before July 1,
1982. Comprehensive Correction Improvement Act of 1985, ch. 5, §§ 7-8, 1985 Tenn.
Pub. Acts 22, 23. It also extended eligibility for sentence reduction credits to Class X
felons. Comprehensive Correction Improvement Act of 1985, ch. 5, § 12(c)(2)-(3), 1985
Tenn. Pub. Acts 22, 25. Thus, neither of these acts repealed the Class X classification.
They merely required sentencing for Class X felonies to be under the 1982 act. The
trial court sentenced the petitioner as a Range II, especially aggravated offender under
the 1982 act. See Tenn. Code Ann. § 40-35-107(8) (repealed 1989). The petitioner’s
sentences are legal and not subject to habeas corpus review.
The petitioner also contends that the judgments are void because the
minute book entry setting forth his sentences is not signed by the trial court. The copy
of the minute entry attached to the habeas corpus petition concludes as follows:
(S) GEORGE P. BALITSARIS
GEORGE P. BALITSARIS, JUDGE
DIVISION III
CRIMINAL COURT
Tenn. Code Ann. § 16-1-106(a) provides:
The minutes of the court for each day’s work shall be signed
by the judge. The minute book shall provide a place for the
judge’s signature after the minute entries each day; however,
where the orders of the court are photocopied so that an
accurate facsimile of the entire order and the judge’s signature
appears, it shall be sufficient for the judge to sign at the end of
the minute book approving all the minutes in the book.
In DuBoise v. State, 200 Tenn. 93, 96, 290 S.W.2d 646, 647 (1956), our supreme court
concluded that the statutory provision for the trial judge signing the minutes is directory
rather than mandatory and that the failure to sign the minutes does not invalidate a
judgment. See also State ex rel. Pierce v. Hardin, 163 Tenn. 471, 477, 43 S.W.2d 924,
925 (1931); Jackson v. Jackson, 3 Shannon’s Cases 18, 27 (1878).
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The petitioner points to the supreme court’s observation in Howard v.
State, 217 Tenn. 556, 561, 399 S.W.2d 738, 740 (1966), that:
With all due respect to what has heretofore been said by this
Court on the subject now before us, we are constrained to the
view that so important a judicial function as authenticating the
minutes of a Court of Record is not permissibly to be either
lightly treated or ignored. Any other rule appears to be fraught
with so much of potential mistake, mischief, and even evil
doing, as to demonstrate such to be impermissible.
We note, though, that Howard does not stand for the proposition that a failure to sign
the minutes renders a judgment void. Cf. Rogers Lamont McKinley v. State, No.
03C01-9308-CR-00255, Hamilton County, slip op. at 4 (Tenn. Crim. App. Aug. 17,
1994) (holding that the judge’s failure to sign the minutes is not a violation of a post-
conviction petitioner’s constitutional rights).
Based upon the foregoing and the record as a whole, we affirm the trial
court’s denial of habeas corpus relief.
________________________________
Joseph M. Tipton, Judge
CONCUR:
_______________________________
James Curwood W itt, Jr., Judge
_______________________________
Norma McGee Ogle, Judge
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