# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION
CHARLES R. SMITH, ) ) NO. 02C01-9607- CC-00241 Appellant, ) ) LAUDERDA LE COUNTY VS. ) ) Hon. Joseph H. Walker, Judge JIMMY HA RRISON, WARDEN, ) ) (Petition fo r W rit of Habeas Corpus ) Appellee. )

FOR THE APPELLA NT : FOR THE A PPELLEE : CHA RLES R. SM ITH, pro se JOHN KNOX WALKUP Cold Creek Correction al Facili ty Attorney Gen eral and Repor ter P.O. Box 1000 Henning, TN 3 8041-1000 DEBORA H A . TULLIS Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 ELIZABETH T. RICE Distric t Attorney General 302 Market Str

eet Somervill e, TN 38068

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE1 Petitioner’s allegation that he was tried on a diff erent indictment is

unsupported by any documentation. We do not understand the nature of this naked allegation. 2 OPINION

The petitioner, Charles R. Smith, appeals the order of the C ircuit Co urt of Lauderdale County

dismissing his petition for writ of habeas corpus. He is presently serving consecutiv e sentences of tw elve (12) years for t he offense of rape and one (1) year f or the offen se of sexual bat tery. The tr ial court di smissed his p etition without a he aring. We affirm the judgment of the trial cour t.

I

Petitioner

alleges t hat he is being illegal ly con fined beca use: (1) t he judge sitting at petitioner’s trial formerly represented petitioner on criminal charges, thus making the ju dge biased against petitioner; (2) he received inef fective assistance of counsel at tr ial; and (3) he was tr ied on a different indictment than that returned by the grand jury.
Initially , the petition does n ot have annex ed to it a copy of the judgments of convicti on and no reason is given i n the petition for their absence. Tenn. Code Ann. § 29-21-107(b) (2) prov ides that if the pet itioner in a petition for w rit of habea s corpus is restr

ained of his libert

y “by virtue o f any legal process, a c opy thereof shall be annexed, or a satisfactory reason giv

en for its absenc e.” This provisi on of the statute is “m andator

y and the fail ure to comp ly w ith sa me may be gr ounds for dismissing the petition.” Stat e ex r el. Wood v. Johnson , 393 S.W.2d 135, 136 (Tenn. 1965); see State ex rel . Kuntz v . Bomar , 3 81 S.W.2d 29 0 (Tenn. 1964). Accordingl y, the tri al court did not err in di smissing the petition. 1

Moreover, petitioner’ s allegati ons that the tri al judge w as biased and hi s trial counsel was ineffectiv e do not ren der t he judgment v oid, but merely raise the2 Addit iona lly, i t appears that a petition for post -convic tion relief would be barred under the statut e of limitations. Ac cording t o his petiti on, Smith was convicted on December 30, 1 991. An agreement dismissing his appeal w as filed on October 5, 1992. His pet ition for a w rit ofhabeas corpus w as filed on June 13, 1996.
3 possibilit yof a voidabl

e judgment. A pe titioner is only enti tled to habeas cor pus relief when “‘it appears up on the face of the judgment or the recor

d of the pro ceeding s upon which the judgment is rendered’ that

a convict ing court was without j urisdicti on or authorit yto sentence a defendant, . . .” or that the sentence has expired. Archer v . State , 851 S.W.2d 157, 164 (Tenn. 1993). There is nothing
on the face of the recor d or the pleadi ngs to i ndicate that the t rial court lacked jurisdict ion or authori ty to sentenc e the petitioner . Nor is there any indication t hat petitioner’s

sentence has ex pired.

The petitioner

cannot establish tha t the judgments convicti ng him are v

oid or that his sentence t erms have ex pired. Therefore, we find that the petition for

a writ of habeas corpus w as properly dismissed.

II

Furthermore, the trial c ourt found thatit had no juris diction to hear a claim for post-convi ction relief. Tenn. Co de Ann. § 40-30- 205(c) all ows a tri al court to treat
a petition for habeas

corpus as one forpost-conv iction rel ief. However, Tenn. Code Ann. § 40-30-204(a) provides that a petition for post-conv iction rel ief shall be filed in the county

of the petitioner's conviction. Smith was convicted in Fayette C ounty but file d thi s pet iti on for rel ief i n Lauderdale Count y. The tri al court acte d appropriately in not treating the habeas corpus petition as one for post-c onviction rel ief. 2

III4 We concl ude that

the pet ition er's claim s do not show that his judgments are void or that his sentences have expi red, making habeas corpus rel ief inappropriat e. Furthermore, the trial court properly refus ed to treat the pet ition as one for postconvicti on relief. The judg ment of the trial c ourt is affirmed.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELLE S, JUDGE