# FILED
October 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OC

TOBER 1997 SESSION
MICHAEL R. SOUTH, ) C.C.A. No. 02C01-9610- CC-00325 Appellant, ) ) Lake County V. ) ) Honorable Joe G . Riley, Jr., Judge ) BILLY COMPTON, WARDEN, ) ) (Habeas Corpus-Agg ravated Rape) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Michael R. South, Pro se John Knox Walkup Route 1, Box 330 Attorney General & Reporter Tiptonville, TN 38079-9775 Kenneth W. Rucker Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-4351 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N1 The indictm ent against the appe llant stated that he: “did unlaw fully and coerciv ely, while armed with a w eapon, to wit: a knife, sex ually penetrate [the vic tim], in violation of T enn. Code An n. § 39-13-502.”

2 For exam ple, State v. Wilson , No. 03C01-9511-CC-00355 (Tenn. Crim. App. at Knoxvill e, filed Mar. 25, 199 7); State v. Burrell , No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxvill e, filed Feb. 11, 1997). -2- The appellant, Michael R. South , pled guilty to ag gravated rape. He w as sentenced to twenty y

ears incarceration in t he Tennessee Department of Correction. He, thereafter , filed a petition for habeas corpus relief. In his petition he alleged that the indictment against him was insuffici ent for failing to allege a
mens rea . He contends his convi ction is void. The tri al court dismissed the petition finding that it was not proper for habeas corpus review. The trial court based this finding on the fact that the appellant’s convicti on was not void on its face and that his sentence had not ex pired. He appeals this di smissal. Upon review, we affirm.
The appellant contends that the indictme nt against him did not sufficiently allege the mens rea for aggravated rape. 1 The appellant bases his theory on State v. Hill , No. 01C01-9508-CC-00267 ( Tenn. Crim. App., at Nashvi lle, filed June 20, 1996). We note that several panels o f this Court have refused to foll ow Hill and that it is currently pending review by

the Tennessee Supreme Court. 2
In Tennessee an indictment must (1) inform the defendant of the precise charges; (2) enable the trial court to enter an appropriate judgment and sen tence upon conviction; and (3) protect the defendant against double jeopardy. State v. Trusty , 919 S.W.2d 305, 309 (Tenn. 1996). It must be stated in ordinary and concise language so that a person of common understa nding will know what is intended. Warden v. State , 381 S.W.2d 244 (Tenn. 1964).
The majo rity of thi s panel de clines to follow Hill . We find that the appellant’s indictment sufficient ly alleged the elements of aggravated rape and was constitutionally sound. He was fully apprised of the charges against him in ordinary and concise l anguage. The appellant’s ind ictment gave the convi cting-3- court an adequate basis for subj ect matter jurisdiction. Therefore, the appellant’s conviction

is not void and is impr oper for habeas corpus revi ew.
Accordingly, w

e find no error of law mandating reversal. The judgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________ JOHN H. PEAY, Judge

__________________________ DAVID G. HAYES, Jud ge