IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 15, 2008

DELIVETRICK D. BLOCKER v. JIM WORTHINGTON, WARDEN

Direct Appeal from the Criminal Court for Morgan County

No. 9392 E. Eugene Eblen, Judge

No. E2008-00881-CCA-R3-HC - Filed February 9, 2009

In 1996, a Hamilton County grand jury indicted the Petitioner, Delivetrick D. Blocker, for first

degree premeditated murder, first degree felony murder, and especially aggravated robbery. In 1997,

a Hamilton County jury convicted the Petitioner of first degree felony murder and especially

aggravated robbery and sentenced him to life imprisonment without the possibility of parole for his

murder conviction. The trial court sentenced him to twenty-two years for especially aggravated

robbery, to be served consecutively to his life sentence. In 2008, the Petitioner filed a pro se petition

for habeas corpus relief, which the habeas court summarily dismissed. On appeal, the Petitioner

contends that the trial court erred when it dismissed his petition because: (1) the indictment charging

him with murder was fatally defective because it did not allege an overt act; (2) the indictment

charging him with especially aggravated robbery was fatally defective because it varied from the

judgment convicting him of attempted especially aggravated robbery, which requires proof of an

overt act; and (3) the trial court did not have jurisdiction to order his sentences to be served

consecutively. After a thorough review of the record and relevant authorities, we affirm the

judgment of the habeas court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

Delivetrick D. Blocker, Pro se, Petros, Tennessee. 

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Rachel

West Harmon, Assistant Attorney General; for the Appellee, State of Tennessee.

OPINION

I. Background

In 1996, a Hamilton County grand jury indicted the Petitioner for first degree premeditated

murder, first degree felony murder, and especially aggravated robbery. A Hamilton County jury
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convicted the Petitioner of first degree felony murder and especially aggravated robbery. The jury

sentenced the Petitioner to life in prison without the possibility of parole for his murder conviction,

and the trial court sentenced him to twenty-two years for his especially aggravated robbery

conviction, to be served consecutively to his life sentence. 

On direct appeal, this court affirmed the Petitioner’s felony murder conviction but modified

the especially aggravated robbery conviction to attempted especially aggravated robbery. State v.

Delivetrick D. Blocker, No. 03C01-9803-CR-00120, 1999 WL 124223 (Tenn. Crim. App., at

Knoxville, Mar. 10, 1999), perm. app. denied (Oct. 4, 1999). The Petitioner then filed a petition for

post-conviction relief, which the trial court denied, and this court affirmed the trial court’s judgment.

Delivetrick Dewon Blocker v. State, No. E2002-00036-CCA-R3-PC, 2003 WL 934245 (Tenn. Crim.

App., at Knoxville, Mar. 10, 2003), perm. app. denied (June 30, 2003). 

The judgment forms from each conviction reveals that the Petitioner committed the felony

murder and especially aggravated robbery offenses on the same day, October 8, 1995. On direct

appeal, this Court set forth the following factual summary of the conduct underlying the Petitioner’s

convictions: 

Defendant and his severed codefendants, cousin Robert Blocker and Calvin

Trammell, who were all juveniles at the time of this crime, called for a taxicab from

a Hamilton County convenience store. When it arrived, they instructed the driver to

take them approximately one-half mile, to a location that the State characterized as

wooded and secluded, along a street with several vacant homes. As the perpetrators

exited the car, Defendant heard Robert Blocker demand money from the driver, who

reached over between the seats. Defendant told police that he believed the driver was

reaching for a gun, so he pulled a sawed-off shotgun from his pants and pointed it at

the driver. He then shot the driver at a range between six and twelve inches from his

head. All three perpetrators fled the scene, and an area homeowner discovered the

victim when the taxicab crashed into her patio. 

Blocker, 1999 WL 124223, at *1. This Court affirmed the Petitioner’s murder conviction but

concluded that the evidence at the Petitioner’s trial was insufficient to support his conviction for

especially aggravated robbery. Accordingly, this Court modified the especially aggravated robbery

conviction to attempted especially aggravated robbery and re-sentenced the Petitioner to nine years,

to be served consecutively to his life sentence. Id. at *20. 

In 2008, the Petitioner filed a petition for habeas corpus relief, claiming: (1) the indictment

charging him with murder was fatally defective because it did not allege an overt act; (2) the

indictment charging him with especially aggravated robbery was fatally defective because it varied

from the judgment convicting him of attempted especially aggravated robbery, which requires proof

of an overt act; and (3) the trial court did not have jurisdiction to order his sentences to be served

consecutively because his offenses occurred within twenty-four hours of each other. The habeas

court summarily dismissed the Petitioner’s request for habeas corpus relief, and the Petitioner

appeals that judgment of the trial court.
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II. Analysis

Whether habeas corpus relief should be granted is a question of law. Edwards v. State, No.

M2006-01043-SC-R11-HC, -- S.W.3d --, 2008 WL 4248714, at *2 (Tenn. Sept. 18, 2008). Thus,

we apply de novo review and afford no presumption of correctness to the findings and conclusions

of the court below. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hogan v. Mills, 168

S.W.3d 753, 755 (Tenn. 2005). 

Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus

relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Tennessee statute, however,

governs the exercise of this constitutional guarantee. See T.C.A. § 29-21-101 (2006). Although

statute does not limit the number of requests for habeas corpus relief a petitioner may make, it does

narrowly limit the grounds upon which a court may grant habeas corpus relief. Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). The petitioner must demonstrate by a preponderance of the evidence

that “the sentence is void or that confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.

2000). In other words, a petitioner must base his request for habeas corpus relief upon the following

very narrow grounds: (1) a claim that, because the convicting court was without jurisdiction or

authority to sentence the petitioner, the convicting court’s judgment is facially invalid and, thus,

void; or (2) a claim that the petitioner’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d

910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Also, “[a]n illegal

sentence, one whose imposition directly contravenes a statute, is considered void and may be set

aside at any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing State v. Burkhard,

566 S.W.2d 871, 873 (Tenn. 1978). In contrast, a voidable judgment is “one that is facially valid

and requires the introduction of proof beyond the face of the record or judgment to establish its

validity.” Taylor, 955 S.W. 2d at 83; see State v. Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

A habeas court is not required, as a matter of law, to grant the writ or conduct an inquiry into

the allegations contained in the petition. See T.C.A. § 29-21-109. If the petition fails on its face to

state a cognizable claim, it may be summarily dismissed by the trial court. See State ex. rel. Byrd

v. Bomar, 381 S.W.2d 280, 283 (1964); T.C.A. § 29-21-109. “If from the showing of the petitioner,

the plaintiff would not be entitled to any relief, the writ may be refused.” T.C.A. § 29-21-109. 

A. Sufficiency of Indictments

On appeal, the Petitioner challenges the sufficiency of both of his indictments, contending

that both fail to allege an “overt act.” Undersome circumstances, an indictment can be so defective

as to deprive a court of jurisdiction. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The

Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 9 of the

Tennessee Constitution guarantee the accused the right to be informed of the “nature and cause of

the accusation.” Our Supreme Court has consistently interpreted this guarantee to require that an

indictment: (1) provide notice to the accused of the offense charged; (2) provide the court with an

adequate ground upon which a proper judgment may be entered; and (3) provide the defendant with

protection against double jeopardy. State v. Hill, 954 S.W.2d 725 (Tenn. 1997); see Hamling v.

United States, 418 U.S. 87 (1974). Also, Tennessee statute requires the following:
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The indictment must state the facts constituting the offense in ordinary and concise

language, without prolixity or repetition, in such a manner as to enable a person of

common understanding to know what is intended, and with that degree of certainty

which will enable the court, on conviction, to pronounce the proper judgment . . . .

T.C.A. § 40-13-202 (2006). 

1. Felony Murder Indictment

The Petitioner contends his indictment for felony murder was insufficient because it failed

to allege an “overt act.” In Wyatt v. State, our Supreme Court concluded an indictment that identifies

the offense, the victim, and the date of the offense against the victim accomplishes the three notice

requirements of Hill. 24 S.W.3d 319, 323 (Tenn. 2000). Also, in State v. Sledge, the Court

specifically ruled on whether the omission of the offense name is insufficient to identify the offense.

15 S.W.3d 93, 94 (Tenn. 2000). The Court concluded that an indictment alleging the defendant “did

unlawfully kill [the victim] during the perpetration of Aggravated Robbery, in violation of T.C.A.

§ 39-13-202" was sufficient “to place the accused on notice of the charged offense” because it

contained a specific reference to the statute. Id. 

The indictment at issue alleges under “SECOND COUNT” that the Petitioner “on October

8, 1995, . . . did unlawfully kill Charles Williamson during the perpetration of Especially Aggravated

Robbery, in violation of Tennessee Code Annotated 39-13-202 against the peace and dignity of the

State.” Section -202 identifies felony murder as a form of first degree murder and defines felony

murder as is the “killing of another committed in the perpetration of or attempt to perpetrate any .

. . robbery . . . .” T.C.A. § 39-13-202(a)(2) (1994). 

We conclude that the indictment charging the Petitioner with unlawfully killing the victim

during the perpetration of especially aggravated robberywas sufficient to provide the Petitioner with

notice of the charged felony murder offense, to provide the court with an adequate basis upon which

to enter a judgment, and to protect the Petitioner against double jeopardy. The indictment’s

reference to the statute defining felony murder, especially when coupled with the indictment’s

description of the offense, was sufficient both to notify the Petitioner of the charged offense and to

provide a basis for the trial court to enter a judgment. Sledge, 15 S.W.3d at 94. Further, the

indictment protects the Petitioner against double jeopardy because, along with identifying the

charged offense, it identifies the date of the offense. Wyatt, 24 S.W.3d at 323. Therefore, the

Petitioner’s indictment was sufficient to provide the court with jurisdiction to enter a judgment

against the Petitioner for first degree felony murder. Id.; Dykes, 978 S.W.2d at 529. The Petitioner

is not entitled to relief on this issue. 

2. Especially Aggravated Robbery Indictment

The Petitioner contends hisindictment for especially aggravated robbery was insufficient to
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give the trial court jurisdiction to enter a conviction for attempted especially aggravated robbery,

because the indictment did not allege an “overt act.” The State argues the indictment is sufficient

both because an attempt is a lesser-included offense of a commission and because an indictment for

an attempt need not allege an overt act. 

The indictment alleges the Petitioner “on October 8, 1995, . . . did unlawfully, intentionally,

knowingly and violently take money from the person of Charles Williamson by the use of a deadly

weapon, causing serious bodily injury to Charles Williamson, in violation of Tennessee Code

Annotated 39-13-403, against the peace and dignity of the State.” Section -403 defines especially

aggravated robbery as a robbery “accomplished with a deadly weapon” and “where the victim suffers

serious bodily injury.” T.C.A.§ 39-13-403 (1994). Although the Petitioner was initially indicted

and convicted of especially aggravated robbery, on direct appeal this conviction was modified to

attempted especially aggravated robbery. See Blocker, 1999 WL 124223. 

Rule 31 of the Tennessee Rules of Criminal Procedure provides that a defendant may be

convicted of an attempt to commit the offense charged in his indictment. Tenn. R. Crim. P.

31(d)(1)(B). Therefore, because the Petitioner’s indictment charged him with especially aggravated

robbery, the trial court had jurisdiction to enter a judgment of conviction against the Petitioner for

attempted especially aggravated. Tenn. R. Crim. P. 31(d)(1)(B). Thus, the Petitioner’s indictment

for especially aggravated robbery was sufficient both to place him on notice he would be prosecuted

for attempted especially aggravated robbery and to provide a basis upon which the trial court could

enter judgment of conviction for attempted especially aggravated robbery. 

We note that the Petitioner, correctly stating that a conviction for an attempt requires proof

of an overt act, incorrectly contends that an indictment for an attempted offense must allege an overt

act. As explained above, indictments in general need not allege an overt act. Sledge, 15 S.W.3d at

94; Wyatt, 24 S.W.3d at 323. Reference to the statute violated and the date of the offense is

sufficient. Id. Indictments supporting an attempt conviction likewise need not allege a specific

overt act. Wyatt, 24 S.W. at 324-25. The introduction of proof of an overt act at trial is sufficient

to give the court jurisdiction to enter a judgment of conviction. Id. Here, the indictment both refers

to section -403, which proscribes the greater offense of especially aggravated robbery, and alleges

the date of the offense. We conclude the Petitioner’s indictment for especially aggravated robbery

was sufficient to place the Petitioner on notice of attempted especially aggravated robbery, to

provide the trial court a basis upon which to enter a conviction for attempted especially aggravated

robbery, and to protect the Petitioner from double jeopardy. Hill, 24 S.W.3d at 323. Thus, the

Petitioner’s indictment was sufficient to give the trial court jurisdiction to enter its judgment of

conviction for attempted especially aggravated robbery. Id.; Dykes, 978 S.W.2d at 529. He is not

entitled to relief on this issue. 

 

C. Jurisdiction to Order Consecutive Sentencing

The Petitioner next contends the trial court erred when it ordered his sentences for attempted

especially aggravated robbery and felony murder run consecutively. In his petition for habeas corpus

relief, the Petitioner argues that the trial court did not have jurisdiction to order consecutive terms

because the offenses occurred within twenty-four hours of each other. The State responds, first, that
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the Petitioner waived this sentencing issue when he failed in his brief to support his position with

argument or citation and, second, that the sentences were not illegal. 

When a petitioner files a brief with this Court, “issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived by this court.”

Tenn. Ct. Crim. App. R. 10(b). In the case under submission, the Petitioner alleged in his petition

that “[t]he Trial Court was without authority to sentence [the Petitioner] to consecutive terms.”

However, the Petitioner fails to support this contention with argument or citation to authorities in

the brief he filed with this Court. Therefore, the issue is deemed waived. 

III. Conclusion

After a thorough review of the record and relevant authorities, we conclude that the habeas

court properly dismissed the Petitioner’s petition for habeas corpus relief. Accordingly, we affirm

the judgment of the habeas court. 

________________________________

ROBERT W. WEDEMEYER, JUDGE