IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 3, 2010

MIKO BURL v. JAMES FORTNER, WARDEN

Direct Appeal from the Criminal Court for Shelby County

No. 99-01971-73 W. Otis Higgs, Jr., Judge

No. W2009-02282-CCA-R3-HC - Filed November 18, 2010

The pro se petitioner, Miko Burl, appeals the summary dismissal of his petition for writ of

habeas corpus relief. On February 7, 2000, the petitioner was convicted of especially

aggravated robbery, aggravated assault, and aggravated burglary, for which he wassentenced

to thirty-three years in the Department of Correction. On appeal, he argues that his

conviction for especially aggravated robbery is void because this court vacated his conviction

for aggravated assault on direct appeal. After careful review, we conclude that the summary

dismissal of the petition was proper, and we affirm the judgment from the habeas corpus

court.

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

JOHN EVERETT WILLIAMS,J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR. and J.C. MCLIN, JJ., joined.

Miko Burl, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Nicole C. Germain, Assistant

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

OPINION

The facts underlying the conviction were summarized by this court on direct appeal

at State v. Miko T. Burl, No. W2000-02074-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 79,

at **2-3 (Tenn. Crim. App. Jan. 28, 2002). On September 22, 1998, the eighty-six-year-old

victim and her daughter-in-law were at the victim’s home in Memphis. The victim heard

someone at the door. Thinking it was her son, she got up to let him in. When she answered

the door, she was met by the petitioner, who held a gun in her face and demanded money.
The victim grabbed the gun, and began to “tussle all over the floor” with the petitioner. The

petitioner threw the victim against a heater, breaking her ribs. He then took $230 from a

pocket of the victim’s clothing and fled the home. During the robbery, the petitioner dropped

a pager. Based upon this fact, the petitioner became a suspect. During the investigation, two

photo lineups were shown to the victim and her daughter-in-law, and both positively

identified the petitioner as the robber.

The petitioner also filed for post-conviction relief, which was denied by both the trial

court and this court on appeal. See Miko T. Burl v. State, No. W2004-00327-CCA-R3-PC,

2004 Tenn. Crim. App. LEXIS 1139 (Tenn. Crim. App. at Jackson, Dec. 23, 2004) and Miko

T. Burl v. State, No. W2005-01640-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 905 (Tenn.

Crim. App. at Jackson, Nov. 17, 2006).

Analysis

On appeal, the petitioner argues that his conviction for especially aggravated robbery

is void because his conviction for aggravated assault was vacated on direct appeal.

Specifically, he contends that his conviction for aggravated assault served as an acquittal of

the charge of especially aggravated robbery because aggravated assault is a lesser included

offense of especially aggravated robbery.

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

corpus relief. Tennessee Code Annotated section 29-21-101 et seq. codifies the applicable

procedures for seeking a writ. While there is no statutory time limit in which to file for

habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief

may be granted. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition

may be used only to contest void judgments which are facially invalid because (1) the

convicting court was without jurisdiction or authority to sentence a petitioner; or (2) a

petitioner’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

Here, the petitioner contends that he should have been acquitted of the especially

aggravated robbery conviction when the jury found him guilty of aggravated assault. The

State argues that the petitioner was not convicted of aggravated assault as a lesser included

offense of especially aggravated robbery because the offenses were charged in separate

indictments and the jury convicted him of each offense separately. The record contains a

transcript from the sentencing hearing in which the trial court calls the case number for each

conviction, but the record does not contain the indictments. Therefore, the favorable ruling

that the petitioner received on direct appeal, which vacated his conviction for aggravated

assault, had no impact on his conviction for especially aggravated robbery. In fact, the

opinion on direct appeal concludes that there was sufficient evidence presented to affirm the

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petitioner’s convictions for both especially aggravated robbery and aggravated burglary

separate from the other vacated conviction. The petitioner has failed to show that the court

was without jurisdiction to impose his sentence or that his sentence has expired; therefore,

he is not entitled to habeas corpus relief.

Conclusion

Based on the foregoing and the record as a whole, we affirm the summary dismissal

of the petition for writ of habeas corpus relief.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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