IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 20, 2005

JOEY LEE SMITH v. KEVIN MYERS, WARDEN

Direct Appeal from the Circuit Court for Wayne County

No. 13698 Stella Hargrove, Judge

No. M2005-01732-CCA-R3-HC - Filed January 18, 2006

The petitioner, Joey Lee Smith, appeals from the circuit court’s summary dismissal of his pro se

petition for writ of habeas corpus. Following our review of the parties’ briefs and applicable law,

we affirm the court’s dismissal of the petition.

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

J.C. MCLIN, J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN EVERETT

WILLIAMS, JJ., joined.

Joey Lee Smith, T.D.O.C.. Clifton, Tennessee, Pro Se. 

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; W.

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

OPINION

In March 1995, the petitioner was convicted of one count of child rape, six counts of

aggravated sexual battery, one count of sexual battery, and two counts of reckless endangerment.

He received a total effective sentence of nineteen years. His convictions were affirmed on direct

appeal, and he was denied post-conviction relief. See State v. Joey Lee Smith, No.

01C01-9603-CC-00108, 1997 WL 438165 (Tenn. Crim. App., at Nashville, July 31, 1997) perm.

app. denied (Tenn. March 16, 1998); Joey Lee Smith v. State, No. M1999-01896-CCA-R3-PC, 2001

WL 363990 ( Tenn. Crim. App., at Nashville, April 12, 2001). In January 2005, the petitioner filed

a pro se petition for writ of habeas corpus. The circuit court dismissed the petition, finding no

grounds entitling the petitioner to habeas corpus relief. 

In his petition and on appeal, the petitioner alleges that he was indicted for simple rape and

convicted of simple rape; but the trial court improperly modified his judgment to reflect a conviction
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for child rape. He essentially argues that his conviction for child rape is void because the trial court

lacked jurisdiction to modify this conviction. 

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

relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the applicable

procedures for seeking a writ. The grounds upon which a writ of habeas corpus may be issued are

very narrow. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available

only when it appears on the face of the judgment or the record of the proceedings upon which the

judgment was rendered that a court was without jurisdiction to convict or sentence the defendant or

that the defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851

S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a

habeas corpus petition is to contest void and not merely voidable judgments. Archer, 851 S.W.2d

at 163. A void judgment is a facially invalid judgment, clearly showing that a court did not have

statutory authority to render such judgment; whereas, a voidable judgment is facially valid, requiring

proof beyond the face of the record or judgment to establish its invalidity. See Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). The burden is on the petitioner to establish, 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). Moreover, it is permissible for a court to summarily dismiss a petition for

habeas corpus relief, without the appointment of counsel and without an evidentiary hearing, if the

petitioner does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

For an indictment to be challenged in a habeas corpus proceeding, the indictment must be

so defective that it fails to vest jurisdiction in the convicting court. See Wyatt, 24 S.W.3d at 323. The

United States and the Tennessee Constitutions require that an indictment inform the accused of “the

nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Const. Art. I, § 9. An indictment

satisfies the constitutional requirement of notice “if it provides sufficient information (1) to enable

the accused to know the accusation to which answer is required, (2) to furnish the court adequate

basis for the entry of a proper judgment, and (3) to protect the accused from double jeopardy.” State

v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Further, the indictment must state the facts of the offense

in ordinary and concise language. See Tenn. Code Ann. § 40-13-202. Indictments patterned after

the pertinent language of an applicable statute are ordinarily sufficient for constitutional and statutory

purposes. See State v. Hammonds, 30 S.W.3d 294, 302 (Tenn. 2000).

Upon review of the record, we conclude that the petitioner is not entitled to habeas corpus

relief. First, the record reflects that the petitioner’s indictment properly charged him with the rape

of a child. The indictment states in pertinent part that “JOEY LEE SMITH . . . did engage in

unlawful sexual penetration of [victim], age 11, and force or coercion was used to accomplish the

act, in violation of Tennessee Code Annotated 39-13-503 [sic] . . . .” Pursuant to Tennessee Code

Annotated section 39-13-522, rape of a child is “the unlawful sexual penetration of a victim by the

defendant or the defendant by a victim, if such victim is less than thirteen (13) years of age.” While

the petitioner’s indictment incorrectly referenced the wrong code provision, the language of the

indictment clearly meets the elements of child rape as set forth in section 39-13-522. As such, the

inclusion of the wrong code provision in the indictment is clearly surplusage. It is well-settled that
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an indictment is not defective because of the inclusion of surplusage if, after eliminating the

surplusage, the offense is still sufficiently charged. State v. Culp, 891 S.W.2d 232, 236 (Tenn. Crim.

App. 1994); see also State v. Beal, 614 S.W.2d 77, 80 (Tenn. Crim. App. 1981) (determining that

the insertion of wrong code provision did not render the indictment invalid); McCracken v. State,

489 S.W.2d 48, 51 (Tenn. Crim. App. 1972) (stating that the presentment’s erroneous reference to

wrong code section was clerical error and thus mere surplusage). In this case, the indictment clearly

informed the petitioner of the crime for which he was charged. Furthermore, both the jury

instructions and the jury verdict clearly indicate that the jury was instructed and found the petitioner

guilty of child rape. Therefore, the trial court’s correction of the judgment form, which had been

mistakenly recorded as simple rape, was merely the authorized correction of a clerical error. See

Tenn. R. Crim. P. 36 (stating that clerical mistakes in judgments arising from oversight or omission

may be corrected by the court at any time). Clerical errors do not give rise to void judgments. See

McChristian v. State, 159 S.W.3d 608, 610 (Tenn. Crim. App. 2004). Accordingly, the petitioner

failed to state a cognizable claim for habeas corpus relief, and the circuit court did not err in

summarily dismissing his petition. The judgment of the circuit court is affirmed. 

___________________________________ 

J.C. McLIN, JUDGE