FILED

January 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1997

STEVE CARROLL, ) C.C.A. NO. 03C01-9611-CR-00420

)

Appellant, ) 

) JOHNSON COUNTY

)

V. ) 

) HON. LYNN BROWN, JUDGE 

HOWARD CARLTON, WARDEN, ) 

) 

Appellee. ) (HABEAS CORPUS) 

FOR THE APPELLANT: FOR THE APPELLEE:

STEVE CARROLL, pro se JOHN KNOX WALKUP 

N.E.C.C. #256046 Attorney General & Reporter

P.O. Box 5000 

Mountain City, TN 37683 ELIZABETH T. RYAN 

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

DAVID CROCKETT 

District Attorney General

Route 19, Box 99

Johnson City, TN 37601 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Steve Carroll, appeals as of right the trial court’s dismissal

of his petition for writ of habeas corpus. Petitioner argues four issues in this pro

se appeal: (1) the indictments were defective in that they were not properly

signed by the District Attorney; (2) the trial court erred in dismissing the petition

before the State’s response was filed; (3) the trial court erred in allowing different

classes of offenses to be included in the same indictment; and (4) the trial court

violated Tenn. Code Ann. § 29-21-108 in failing to grant the writ. We affirm the

judgment of the trial court. 

On June 21, 1995, the Petitioner was indicted by the Campbell County

Grand Jury for one count of aggravated rape, two counts of aggravated sexual

battery, three counts of aggravated child abuse, one count of rape of a child, one

count of incest, and two counts of aggravated assault. Upon pleas of guilty, the

Petitioner was convicted of two counts of aggravated child abuse and sentenced

to ten years in prison. 

On October 23, 1996, the Petitioner filed a petition for writ of habeas

corpus relief in the Johnson County Criminal Court. He alleged that his

convictions were void because the indictment did not contain the requisite

signature of the district attorney. Before the State filed a response, the trial court

dismissed the petition on October 29, 1996. The trial court concluded that the

petition failed to state a claim upon which relief could be granted. After the

Petitioner appealed the dismissal of his petition to this Court, the State filed a 
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motion to remand to the trial court for consideration of the issue raised by the

Petitioner in his petition, which motion was granted on January 28, 1997. The

trial court subsequently entered an order on March 25, 1997, dismissing the

petition because a “defect in an indictment is a matter which must be addressed

in the trial court and on direct appeal or by petition for post-conviction writ [sic] in

the trial court. It is not grounds for habeas corpus. Such does not remove

jurisdiction from any criminal court of this [S]tate.” The Petitioner now brings this

appeal of the trial court’s dismissal of his petition for habeas corpus relief. 

It is a well-established principle of law that the remedy of habeas corpus

is limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-62

(Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994).

In Tennessee, habeas corpus relief is available only if “‘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, 851 S.W.2d at 164 (citation omitted in original). The

petitioner has the burden of establishing either a void judgment or an illegal

confinement by a preponderance of the evidence. Passarella, 891 S.W.2d at

627. Moreover, where a judgment is not void, but is merely voidable, such

judgment may not be collaterally attacked in a suit for habeas corpus relief. Id.

I. Alleged Defective Indictments
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Petitioner first argues that his convictions are void because each count of

the indictment was not signed by the District Attorney General. Tennessee Code

Annotated section 40-13-103 requires a district attorney to sign the charging

document before it is sent to the grand jury. Our supreme court has also stated

that no indictment should be sent to the grand jury “without the sanction and

approbation of the solicitor-general, proved by his signature on some part of the

bill.” Fout v. State, 4 Tenn. (3 Hayw.) 98, 99 (1816) (emphasis added). Clearly

a signature is required, but one is not necessarily required to be on each count

of an indictment. In State v. Lockett, our supreme court explained, “It is not

essential that the signature of the officer should be placed at the end of the

indictment. It is sufficient if it appear on some other part of the paper, provided

it appear beyond doubt that the attestation relates to the indictment and every

part thereof, and identifies the same as the act and accusation of the

governm ent, done through its sworn officer.” 50 Tenn. (3 Heisk.) 274-75 (1871).

The court also stated that it is not “absolutely necessary that the signature should

be at the conclusion of the bill; but it must be on it, and must show that it is

intended to cover all the counts contained therein.” Id. at 275. 

The District Attorney General in the instant case signed the second page

of a two-page indictment. The counts in the indictment were consecutively

numbered, starting on page one and continuing through page two. It can be

logically reasoned that his signature was plainly intended to cover all the counts

contained in the two-page indictment. We find no merit in this issue.

II. Alleged Error in Dismissing Petition Before 

State Filed Response
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The trial court dismissed the Petitioner’s petition for habeas corpus relief

before the State’s response was filed because Petitioner had not shown that his

conviction was void or that his term of imprisonment had expired. In Passarella,

this Court held that if it is clear from the face of the petition that the petitioner is

not entitled to relief, then the trial court is not required to hold a hearing or inquire

into the allegations in the petition, but may dismiss the petition summarily. 891

S.W.2d at 627. Petitioner’s allegations in the instant case, if meritorious, would

render his conviction voidable rather than void, thus making the issues

inappropriate for habeas corpus relief. Therefore, the trial court had the authority

to summarily dism iss the petition. This issue is without merit. 

III. Alleged Error in Allowing Different Classes 

of Offenses in Same Indictment

Petitioner argues that the Campbell County Criminal Court erred in placing

different classes of offenses in the same indictment. This Court finds that this

issue is not appropriate for habeas corpus review because even if the issue had

merit, the conviction would not be void but merely voidable. See Passarella, 891

S.W.2d at 627. 

Rule 14 of the Tennessee Rules of Criminal Procedure provides for

severance of offenses in appropriate cases. It provides that a defendant’s motion

for severance of offenses must be made before trial unless it is based on a

ground not known prior to trial. In this case, Petitioner pled guilty to two of the

offenses in the indictment. Not only is the issue waived by failure to file a motion

for severance prior to the guilty plea, we see absolutely no prejudice to Defendant

if consolidation of the offenses in one indictment was improper due to the fact
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that Petitioner pled guilty to only two of the m ultiple offenses in the indictment.

This issue is without merit.

IV. Alleged Failure of Trial Court in Refusing 

to Entertain Petitioner’s Petition 

In his final issue, Petitioner alleges again that his conviction was void, and

that it was therefore unconstitutional for the trial court to not entertain his petition.

He also argues that the trial court’s dismissal of his petition was arbitrary, callous

and made with deliberate indifference as to his rights. In support of his argument

that it was unconstitutional, Petitioner cites Rule 58 of the Tennessee Rules of

Civil Procedure. However, this rule applies to proper entry of judgm ents with

notice given to the parties. Therefore, this rule is inapplicable to the issues and

case at bar. 

Regarding Petitioner’s argument that his conviction is void, this issue has

been reviewed above and decided against the Petitioner. Furthermore, we do not

find the actions of the trial court to be arbitrary or “callous.” The trial court was

justified in dismissing Petitioner’s petition, as his conviction was not void and his

sentence had not expired. This issue is without merit. 

Finding no merit in the issues raised by Petitioner, we affirm the judgment

of the trial court.

____________________________________

THOMAS T. W OODALL, Judge 
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CONCUR:

___________________________________

DAVID H. WELLES, Judge

___________________________________

DAVID G. HAYES, Judge