IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 18, 2018

ROBERT EARL BORNER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Trousdale County

No. 2017-CV-4661 John D. Wootten, Jr., Judge

No. M2017-02305-CCA-R3-HC

The Petitioner, Robert Earl Borner, appeals the dismissal of his petition for writ of habeas 

corpus. He argues that the indictment is void because it failed to state the essential 

elements of the conviction offense. After a thorough review of the record, the briefs of 

the parties, and the applicable law, we affirm the judgment of the habeas corpus court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Robert Earl Borner, Hartsville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Leslie E. Price, Assistant 

Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

In 2011, a McNairy County Circuit Court jury convicted the Petitioner of the 

delivery of less than .5 grams of cocaine, and the trial court imposed a sentence of eight 

years in the Tennessee Department of Correction. See State v. Robert Earl Borner, No. 

W2012-00473-CCA-R3-CD, 2013 WL 1644335, at *1 (Tenn. Crim. App. Apr. 16, 2013). 

On October 10, 2017, the Petitioner filed a petition for writ of habeas corpus, alleging 

that the indictment is void because it charged him with the delivery of “.5 grams or less” 

of cocaine instead of “less than .5 grams of cocaine.” On October 20, 2017, the habeas 

corpus court summarily dismissed the petition, noting that the Petitioner’s claim had been 

considered and rejected by this court on direct appeal and that the indictment was not so 

defective as to deprive the trial court of jurisdiction.

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ANALYSIS

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

habeas corpus relief. However, the grounds for the writ are very narrow. Archer v. State, 

851 S.W.2d 157, 162 (Tenn. 1993). Habeas corpus relief is appropriate “only when ‘it 

appears upon the face of the judgment or the record of the proceedings upon which the 

judgment is rendered’ that a convicting court was without jurisdiction or authority to 

sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint 

has expired.” Id. at 164 (citation omitted). The writ may be used to correct judgments 

that are void, rather than merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.

1999). A judgment is void when it “is facially invalid because the court lacked 

jurisdiction or authority to render the judgment or because the defendant’s sentence has 

expired.” Id. A voidable judgment “is one which is facially valid and requires the 

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

invalidity.” Id. This court reviews the dismissal of a habeas corpus petition de novo with 

no presumption of correctness given to the conclusions of the habeas corpus court. 

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).

In addition to his claim that the indictment was void, the Petitioner raises a variety 

of issues in this appeal that he did not raise in his original petition for writ of habeas 

corpus. These issues are waived because the Petitioner has raised them for the first time 

on appeal. See State v. Howard, 504 S.W.3d 260, 277 (Tenn. 2016) (“It is well-settled 

that a defendant may not advocate a different or novel position on appeal.”); State v. 

Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time 

on appeal are considered waived.”).

The appellant contends that the indictment charged him with delivering “.5 grams 

or less” of cocaine, did not follow the statutory language, and did not provide adequate 

notice of the offense charged. He maintains that the indictment should have charged him 

with delivering “less than .5 grams” of cocaine. He notes that Tennessee Code Annotated 

section 39-17-417(a)(2), (c)(1), and (c)(2) prohibits the delivery of cocaine in the amount 

of less than .5 grams, which is a Class C felony, and in the amount of .5 grams or more, a 

Class B felony; he contends that the indictment was confusing because it “suggest[ed] 

culpability for both classes of sale/delivery crimes.” The State maintains that the 

appellant waived the issue by failing to raise it prior to trial and that, regardless, the 

indictment was sufficient.

The Petitioner challenged the validity of the indictment on direct appeal, but this 

court concluded that the Petitioner “waived his right to complain about the alleged 

defect” in the indictment because he “did not raise the issue of the sufficiency of the 

indictment prior to trial.” Robert Earl Borner, 2013 WL 1644335, at *6-7. Because a 
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valid indictment is a jurisdictional element, an indictment so defective that it does not 

vest jurisdiction in the trial court may be challenged pursuant to the writ of habeas 

corpus. Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000). An indictment is valid if it 

contains 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). Despite the minor defect noted by the Petitioner, the 

indictment in this case satisfies these minimum requirements. The Petitioner is not 

entitled to habeas corpus relief.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the habeas corpus court.

_________________________________ 

JOHN EVERETT WILLIAMS, JUDGE