### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

anuary 23, 2001 MICHAEL WAYNE DEAN v. STAT E OF TENNESSEE Appeal from the Circuit Court for Bledsoe County No. 10881 Buddy D. Perry, Judge

No. E2000-01452-CCA-R3-PC March 21, 2001
The petitioner chall

enges the trial court’s dismissal of his petition for habeas corpus relief. He contends that the trial court lacked jurisdiction to enter a judgment for second degree

murder because that offense i s not a less

er includ ed offen se of felo ny murd er with wh

ich he was

indicted. We affirm the trial court’s dismissal of the habeas corpus petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OSEPH M. T IPTON , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J AMES C URWOOD W ITT , J R ., J., joined. Michael Wayne Dean, Pikeville, Tennessee, Pro Se

. Paul G. Su mmers, Attor ney General and Reporter; Clinton J. Morgan, Counsel for the State; and James Michael Taylor, District Attorney Gener al, for the appellee, State of Tennessee. ORDER
The petitioner, Micha

el Wayne De

an, appeals

as of right the Bledsoe County Circuit Court’s dismissal of

his petition for habeas corpus relief. He is presently serving a fifteen-y ear sentence as a Violent Offender

for his September 10, 1999 conviction pursuant to a guilty plea to second degree murder, a Class A felony. The petitioner contends that the trial court was without jurisdi ction o r authority to enter this

judgment becau

se second degr

ee murder is not a

lesser included o

ffense of his indicted offense of felony murder. The state contends that the trial court prope rly di smis sed the petition because the judg ment is not void on its f

ace. It note

s that the judgmen

t reflects that th e petitioner agreed to the amended charge of second degr ee murder. We affirm the trial court’s dismissal of the pet

ition pursuant to Rule

20, Tenn. Ct. Crim. Ap

p. R.
A petition for the writ of habeas corpus may be brought if the judgme nt 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.-2-

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). Thus, we examine the judgment on its face to deter

mine whether it is

void. Here, the judgment of conviction states that the petitioner pled guilty to the amended charge of second deg ree murder. A de f

endant may agree to the amendment of the i

ndictment. Tenn. R.

Crim. P. 7(b). Such an agreement remedies any potential defect in the conviction for second degree murder. See Charles K. Hunter v. Ricky Bell, Warden , N o. 01C01-9807-CR-00316, Davidson County, slip op. at 3 (Tenn. Crim. App. July 9, 1999) (holding that a judgment re flecting an agreed amend ment of attempted f

irst degree mur

der to aggravated

assault foreclo ses any arg ument that agg

ravated assault

is not a lesser incl

uded offense of attempted first degree murder). The judgment is valid upon its face. After a full consideration of the record, the briefs, and the law governing the issues presented, we are of the opinion that the evidence justifies the trial cour t’s di smissal of the habeas corpus pe tition and that no error of law exists that would require a reversal. Therefore, we order that the judgment of the trial court should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R., and that the case be remand

ed to the Circuit Court of Bledsoe County for the execution of judgment and the collection of costs accrued below. It appearing that the petitioner is indigent, the costs of the appeal are taxed to the State of Tennessee.

___________________________________ JOSEPH M. TIPTON, JUDGE

___________________________________ GARY R. WADE, PRESIDING JUDGE

____________________________________ JAMES CURWOOD WITT, JR., JUDGE