IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 8, 2005

EDWIN MATTHEW BRYANT v. FLORA J. HOLLAND, WARDEN

 Appeal from the Criminal Court for Davidson County

No. 3438 Steve Dozier, Judge

No. M2003-02838-CCA-R3-HC - Filed April 7, 2005

The petitioner, Edwin Matthew Bryant, appeals pro se from the Davidson County Criminal Court’s

dismissal of his petition for habeas corpus relief from his convictions for two counts of vehicular

assault, a Class D felony, and resulting sentences of four years each to be served concurrently in the

Department of Correction. He contends that the trial court erred in dismissing his writ of habeas

corpus without appointing counsel and that his sentences are illegal because the trial court sentenced

him to incarceration and imposed restitution and because the trial court enhanced each of his

sentences from two years to four years without finding any applicable enhancement factors. We

affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Edwin Matthew Bryant, Pro Se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor

S. (Torry) Johnson, III, District AttorneyGeneral; Pamela Sue Anderson, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The record reflects that on October 3, 2001, the petitioner, pursuant to a plea agreement, pled

guilty to two counts of vehicular assault. See T.C.A. § 39-13-106. The agreement provided that the

petitioner would receive two four-year sentences to be served concurrently and that the question of

manner of service would be left for determination by the trial court. At the sentencing hearing, the

court ordered the sentences to be served in confinement and ordered the petitioner to pay restitution

in the amount of $5,195.95. The petitioner subsequently filed a petition for the writ of habeas corpus

alleging that he was illegally constrained of hisfreedom, and the trial court summarily dismissed it.

On appeal, the petitioner contends that the trial court erred by summarily dismissing his petition
-2-

without appointing him counsel and that his sentences are illegal. He cites State v. Davis, 940

S.W.2d 558 (Tenn. 1997), for the proposition that a sentence involving both incarceration and

restitution is illegal. He also contends that his sentence is illegal because the trial court enhanced

his sentence without first finding applicable enhancement factors. The state contends that the trial

court properly dismissed the petition and that Davis is distinguishable from the instant case based

upon a change in law. The state, however, does not address the petitioner’s contention that his

sentence is illegal because of improper enhancement. We hold that the trial court’s summary

dismissal of the petition for writ of habeas corpus was proper because the petitioner has failed to

state a claim.

The trial court may summarily dismiss a petition for writ of habeas corpus relief when the

petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void

or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). However, if the

claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be

granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the

judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The determination of

whether relief should be granted is a question of law which this court reviews de novo. Hart v. State,

21 S.W.3d 901, 903 (Tenn. 2000).

The petitioner argues that Davis requires granting his petition for habeas corpus relief. In

Davis, our supreme court held that under the Sentencing Act of 1989, “there is no authority under

which courts may impose restitution as a part of a sentence of incarceration.” Davis, 940 S.W.2d

at 962. However, the court also recognized 

that, effective July 1, 1996, Tenn. Code. Ann. § 40-35-104(c)(2) was

amended to include the following sentencing alternative: “Payment

of restitution to the victim or victims either alone or in addition to any

other sentence authorized by this subsection.” This statutory

authorization for restitution as a sentencing alternative was not

available at the time of the appellant’s sentencing, and it does not,

therefore, affect our holding in this opinion.

Id. n.6. 

The legislature’s change to the Sentencing Act allowing for incarceration and restitution

occurred in 1996. Although the record before us does not reflect the date when the offenses

occurred, only that he was convicted in October 2001, the petitioner has failed to allege why the

1996 law does not apply to his sentence. He is not entitled to relief on this issue.

Regarding the enhancement of the petitioner’s sentences from two years to four years, the

record reflects that the petitioner agreed to the four-year terms in his plea agreement. A sentence of

four years is within the range authorized by statute for a Range I, standard offender. See T.C.A. §
-3-

40-35-111, -112. This issue is without merit. Because the petitioner’s petition for habeas corpus

relief fails to state a claim, we hold the trial court did not err in summarily dismissing it.

Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE