# FILED January 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE DECEMB ER SESSION, 1997
STEVE CARROLL, ) C.C.A.NO. 03C01-9611-CR-00420 ) Appe llant, ) ) JOHNSON COUNTY ) V. ) ) HON.LYNN BROWN, JUDGE HOWARD CARLTON,WARDEN, ) ) Appellee. ) (HABEAS C ORPU S)

FOR THE APPELLANT : FOR THE APPELLEE : STEV E CAR ROL L, pro se JOHN KNOX WALKUP N.E.C.C. #256046 Attorney General& Reporter P.O. Box 5000 Mountain City , TN 37683 ELIZA BETH T. RYAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 DAVID CROCKETT Distri ct Attorney General Route 19, Box 99 Johnson City, TN 37601

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petition er, Ste ve Ca rroll, app eals a s of righ t the trial c ourt’s dismissal of his petiti on for writ of habeas corpus. Petitioner argues four issues in this pro se appeal: (1)the indi ctments were defective i n that they were not properl y signed by the Dist rict At torney; (2) the t rial cour t erred in dismissi ng the petiti on before the State’ s response was fi led; (3)the tri al court erred in all owing diff erent classes of offens es to be included i n the same indict ment; and (4) t he trial court violated Tenn. Code Ann. § 29-21-108 i n faili ng to grant t he writ. We affirm the judgm ent of the tria l court.

On June 2 1, 1995 , th e Pet itioner was indicted b y the Ca mpbe ll County Gr and Jury for one count of aggravated rape, two counts of aggravated se xua l battery, three counts

of aggravated child abuse, one count of rape of a chil d, one count of incest, an d two co unts of aggravated assault. Upon pleas of guilty, the Petiti oner was convic

ted of t wo counts of aggr

avated chil d abuse and sentenced to ten yea rs in prison
.
On Octo ber 23 , 1996 , the Pe titioner file d a pe tit i on for wri t of habeas corpus relief in th e Joh nson Coun ty Crim inal Co urt. He alle ged tha t his convicti ons were void becaus e the indi ctment did no t contain th e requisite signature of the district attorney. Before theState filed a respon se, the trial court dismissed the petition on O ctober 29, 199 6. The trial court conclude d that the petiti on failed to state a claim u pon wh ich relief cou ld be gra nted. A fter the Petiti oner appealed t he dismissal of his pet ition t o this Court , the State filed a-3-

motion to remand to the trial court for c onsiderat ion of theissue rai sed by the Petiti oner in his pet ition, whi ch motion w a s granted on Januar y 28, 1997. The trial court subsequent ly enter ed an order on March 25, 1997, dismissi ng th e petiti on because a “defe ct in an indictm ent is a matter whic h must be addressed in the tri al court an d on dire ct app eal or b y petition for pos t-conv iction w rit [sic] in the trial court. It is not gro unds for hab eas corpu s. Such doe s not remo ve jurisdi ction from any crim inal court of this [S]tate.” The Petiti oner now b rings th is appea l of the trial cou rt’s dismiss al of his pe tition for hab eas co rpus relief.

It is a well -establi shed princi ple of l aw that the r emedy of habeas co rpus is limited in its na ture and its scope
. Archer v. State , 851 S.W.2d 157, 161-62 (Tenn. 1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App . 1994). In Tennessee, habeas corpusrelief is available only if “‘it appears upon the face of the judgme nt or the re cord of the p rocee dings upon which the jud gme nt is rendered’ that a convi cting cour t was without j urisdic

tion or authority to sentence a defendan t, or that a defenda nt’s sentence o f imprisonm ent or other re stra int has expired.” Archer , 851 S.W.2d at 164 (ci tation omi tted in original ). The petiti oner has the bu rden ofestabli shing eit her a void j udgment or an il legal confi nemen t by a prep ondera nce of the evidenc e. Pass arella , 891 S.W.2d at 627. Moreover, wher e a judgmen t is not void, but is merely voidable, such judgment may not be col lateral ly attacked in asuit for habeas corpusrelief. Id
.

I. Alleged D efective Ind ictmen ts-4- Petiti oner first

argues that his convict ions are void because each count of the indict ment was not signed by the District Attorney General. Tennessee Code An n otated section 40- 13-103 requir es a distr ict att

orney to si gn the chargi ng document before it is sent to the grand ju ry. Our supr eme court has also stated thatno indictm ent sho uld be se nt to the grand jury “without the s anction and approbation of the s olicitor-g enera l, prove d by his signature on some part of t he bill .” Fout v. State , 4 Tenn. (3 H ayw.) 98, 99 (1816 ) (emp hasis adde d). Cle arly a signature is requir

ed, but one is not neces sarily required to be on each count of an ind ictment. In State v. Lo ckett , our supreme court explained, “ It is n o t essentialthat the sig nature o f the officer sh ould be placed a t t he end of th e indictme nt. It is sufficie nt if it appear on some other par t of the pap er, provi ded it appear beyond doubt t hat the at testation relates to the ind ictment and every part thereof, an d identifies th e sam e as the a ct and ac cusation of th e governm ent, done through its sworn officer.” 50 Tenn . (3 Heisk.) 274-7 5 (1871). The court a lso sta ted tha t it is not “a bsolu tely nec essa ry that th e sign ature s hould b e at the c onclu sion o f the bill; b ut it mu st be o n it, and mus t show that it is intended to co ver all the counts co ntained therein.” Id . at 275.

The Distri ct Attorney General in the instant case signed the second page of a two-page indi ctment. The counts i n the in dictm ent we re con secu tively numbered, starti ng on page one and conti nuing through p ag e tw o. It can be logica lly reasoned that his signature was plainly intend ed to cov er all the co unts contained i n the two-page i ndictment. We find no merit in this i ssue.

II. Al leged Error in Dismissi ng Petiti on Before

State Filed Response-5- The trial court dismissed the Petiti oner’s petition for habeas corpus rel ief before the State’s r

esponse was fil ed beca use P etitione r had n ot sho wn tha t his convicti on was void or that his term of impris onment had expired. In Pass arella , this Co urt held that if it is cl ear from the face of the p etition th at the p etitione r is not entitl ed to reli ef, then t he trialcourt is not required to hold a hearing or inquire into the a llegati ons in the pet ition, but may dismiss t he petiti on summarily. 891 S.W.2d at 627. Petitioner’ s allegat ions in the instan t case , if merito rious, w ould renderhis convi ction voi dable r ath er than voi d, thus making t he issues inappro priate for habeas corpus relief. Therefore, the trial court had the authority to sum marily dism iss the pe tition. This iss ue is witho ut merit.

III. Al leged Error in All owing Different Classes of Offenses i n Same Indictment
Petiti oner argues that the C ampb ell Coun ty Criminal Court erred i n placing dif ferentc lasse s of offe nses in the sa me in dictm ent. T his Co urt finds that this issue is not appr

opriate f or habeas corpusreview because even if t he issue had merit, the convic

tion would not be void but merely vo idable. See Pass arella , 891 S.W .2d at 627
.
Rule 14 of the Tennessee Rule s of CriminalProcedure provi des for severance of offenses i n appropriate cases. It provides t hat a defendant’ s motion forseverance of offenses must be made before trialunless it is based on a ground not kn own pri or to trial. In this case, Petit ioner pled guilty to two of t he offensesin the indictm ent. Not o nly is the issu e waived by failure to file a motion forseverance pri or to the guilty plea, we see absol utely no pr ejudice to Defendant if conso lidation of the off enses in one indictment was improper due to the fact-6-

thatPetitioner p led guilty to on ly two of the m ultiple offens es in the in dictme nt. This issu e is withou t merit.

IV. All eged Failure of

Trial Court

in Refusing to Entertain Petit ioner’s Pet ition
In his fi nal issue, Petiti oner alleges again that

his convi ction was void, and thatit was t herefore unconst ituti onal for t he trialcourt to not entertai n his peti tion. He also argues t hat the trial court’s dismissa l of his pet ition was arbitr ary, cal lous and mad e with d elibera te indiffe rence as to h is rights . In sup port of h is argument thatit was unconst ituti onal, Peti tioner cites Rule 58 of t he Tennessee Rules of C ivil Proced ure. How ever, this rule applies to proper e ntry of judgm ents with notice given to the parties. Therefore, t his rule is inappl icable to the issues and case a t bar.
Regarding Petiti oner’s argument t hat his convi ction i s void, this i ssue has been reviewed above and decided against the Peti tioner. Furthermore, we do no t find the acti ons of the t rial cour t to be arbitrary or

“callous .” The trialcourt was justified in dismissi ng Petiti oner’s petition, as his convi ction wasnot void an d his senten ce had not expire d. This iss ue is witho ut merit.
Finding no merit i n the issues r aised byPetit ioner, we affirm the judgment of the trial cou rt.

____________________________________ THOMAS T. W OODALL, Judge-7-

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ DAVID G. HAYES, Judge