1

 For a more detailed recitation of the facts underlying the petitioner’s convictions, see State v. Richard Lynn

Norton, No. 319, 1990 WL 95614, at **1-2 (Tenn. Crim. App. at Knoxville, July 12, 1990).

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2002

RICHARD LYNN NORTON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 3223 Seth Norman, Judge

No. M2002-00789-CCA-R3-CO - Filed June 24, 2003

The petitioner, Richard Lynn Norton, was convicted in 1989 of aggravated assault and assault. He

received an effective sentence of ten years incarceration in the Tennessee Department of Correction.

Subsequently, the petitioner filed for habeas corpus relief, contending that the indictment charging

him with aggravated assault was defective and therefore his conviction for aggravated assault is void.

The trial court denied the petition for habeas corpus relief and the petitioner appealed to this court.

Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN

EVERETT WILLIAMS, JJ., joined.

Richard Lynn Norton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Jon Seaborg, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On May 18, 1989, a Greene County jury found the petitioner guilty of the aggravated

assault of Officer Jack Kelley and the assault of Officer Sam Greene.1

 The trial court imposed a

sentence of ten years incarceration for the aggravated assault conviction and a concurrent sentence

of eleven months and twenty-nine days for the assault conviction. In his brief on appeal, the

petitioner stated that his ten year sentence “expired in June of 1996.” 
2

 The trial court correctly admonished the petitioner for failing to include the judgments of conviction with his

original petition for habeas corpus relief as required by Tennessee Code Annotated section 29-21-107 (b)(2). We note

that a trial court may dismiss a petition for failure to comply with this requirement. See State ex rel. Wood v. Johnson

393 S.W.2d 135, 136 (Tenn. 1965).

3

 The petitioner also raises additional issues on appeal which were not raised in the trial court, and therefore

will not be considered by this court.

-2-

On February 22, 2002, the petitioner filed in the Davidson County Criminal Court a

Petition for a Writ of Habeas Corpus, alleging that the indictment charging him with aggravated

assault “does not charge, the offenses of aggravated assault, in that it does not assert the essential

element of bodily injury or serious bodily injury.” Accordingly, the petitioner asserts, “the judgment,

sentence, and v[e]rdict are void on its face.” The petitioner contends that the alleged void conviction

was used to enhance a sentence imposed on a subsequent conviction for which he remains

incarcerated.

The trial court, without a hearing and without the appointment of counsel, denied the

petitioner habeas corpus relief, explaining:

[t]he petitioner alleges that the indictment does not charge the offense

of aggravated assault, the conviction and sentence of which we must

assume the petitioner is serving, since no copy of the underlying

judgment was attached to the petition, in accordance with [Tennessee

Code Annotated section] 29-21-107(2). This is not a remedy afforded

by means of habeas corpus. The petition is hereby denied.2

As a result of the trial court’s order, the petitioner attempted to amend his habeas

corpus petition to include the judgments underlying his convictions. However, the record before this

court does not reflect that the “amendment” was ever received or considered by the trial court. On

appeal, the petitioner argues that “[t]he language of the indictment in counts (1) and (2) does not

sufficiently charge the offense of aggravated assault.”3 

II. Analysis

The determination of whether to grant habeas corpus relief is a question of law.

McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial court’s findings

de novo without a presumption of correctness. Id. Moreover, it is the petitioner’s burden to

demonstrate, by a preponderance of the evidence, “that the sentence is void or that the confinement

is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the right

to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,

“[s]uch relief is available only when it appears from the face of the judgment or the record of the

proceedings that a trial court was without jurisdiction to sentence a defendant or that a defendant’s

sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322; see also Tenn.

Code Ann. § 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the
-3-

judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in

which the judgment is facially invalid because the court lacked jurisdiction or authority to render the

judgment or because the defendant’s sentence has expired.’ We have recognized that a sentence

imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson v.

Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (citations omitted). Moreover, we note that “[w]ithout

question, the procedural provisions of the habeas corpus statutes are mandatory and must be

followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993).

In Wyatt, 24 S.W.3d at 322-23 (citations omitted), our supreme court stated:

Generally, defenses and objections based on a defective indictment

must be raised prior to trial or they are waived. However, as we have

previously stated, “[a] valid indictment is an essential jurisdictional

element, without which there can be no prosecution.” Thus, an

indictment that is so defective as to fail to vest jurisdiction in the trial

court may be challenged at any stage of the proceedings, including in

a habeas corpus petition.

Accordingly, if the indictments charging the petitioner were fatally defective, this issue could be

raised in a habeas corpus petition. Regardless, the petitioner’s complaint is without merit.

The petitioner maintains that the indictments were fatally flawed because they did not

allege that he caused serious bodily injury. However, the statute in effect at the time of the offense

provided that an accused could be guilty of aggravated assault in a variety of ways. Count one of

the indictment against the petitioner charged that the petitioner “unlawfully assault[ed] officer Jack

Kelley, while displaying a deadly weapon, to-wit: a pistol contrary to [Tennessee Code Annotated

section] 39-2-101(b)(3).” Count two charged the petitioner with the exact same offense against

officer Sam Greene. Tennessee Code Annotated section 39-2-101(b)(3) (1987) provided:

(b) A person is guilty of the offense of aggravated assault, regardless

of whether the victim is an adult, a child, or the assailant’s spouse, if

such person:

. . . .

(3) Assaults another while displaying a deadly weapon or while the

victim knows such person has a deadly weapon in his possession.

Thus, the indictments charging the petitioner correctly charged the appellantwith aggravated assault.

This issue is without merit. 

III. Conclusion

Based upon the foregoing, we affirm the judgment of the trial court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE