### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs O ctober 7, 2003 WALTER EUGENE INGRAM v. STAT E OF TENNESSEE Direct Appeal from the Criminal Court for Shelby County

No. B95509 Joseph B. Dailey, Judge

No. W2003-00442-CCA-R3-CD - Filed January 14, 2004

The defendant, Wal ter Eugen e Ingra m, filed a “Motion to Correct Illeg al Sentence” in the Shelby Count y Criminal Court. Upon

reviewing the mo tion and th e State’ s respons e, the tr ial cour t summarily

dismissed the motion, finding that it failed to al l ege grounds for re lief. The defendant appealed. Upon review of the record and the parties’ briefs, we conclude that

the defendant’s appeal should be dismissed. Tenn. R. App.P. 3; Ap peal Dism issed.
N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R
. and J OHN E VERE TT W IL LI AMS , JJ., joined. Walter Eugene I

ngram, Only , Tennessee, Pro se.
Michael E. Moore, Solicitor General ; Dav id H. F in dl ey, A ss is tan t At to rne y Gen era l; Wi ll iam L. Gibbons, District Attorney General; and

Steve P. Jones, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Fact ual Backgro

und
On June 26, 198 5, this court affirmed the defendant’s convictions and se ntences for robbery witha deadly w eapon and violation of the habitual criminal statute. See State v. Wal ter Eu gene Ingram , No. 147, slip op. at 4 (Tenn. Crim. App. at Jackson, June 26, 19 85). The defen dant was sentenced to ten years in the pe

nitentiary for the robbery

conviction and the sentence was enhanced to life imprisonment due to the habitual criminal conviction. Our opinion in the post-conv ictio n action previous ly f

iled by the defe ndant note d that “it

appears that the habitual criminalconviction occurred in September or November of 1983.” Walter E. Ing ram v. Sta

te , No. 02C01 -9608-CR00258, 1997 WL 421213, at *1 (Tenn. Crim. App. at Jackson, July 28, 1997).1 Tenness ee Code Annot ated section 40- 35-120 ( 1994), t he code s ecti on provi ding the corre ct s ente ncin g for repeat violent offen ders, r eferen ces Tennessee Code Annotated sect ion 40- 35-118 t o ass ist in de ter mini ng whi ch pri or felony offenses should b e conside red to be violent offenses. -2- On December 5, 2001, the defendant filed a “Motion to

Correct Illeg al Sentence,” alleging that his conviction for robbery by use of a

deadly we apon was incorre ctly used as th

e basis f or his conviction as an habitual offender. The defe ndant cited Tennessee

Code Annotatedsections 40-35- 120 (1994) and 40-35-118 (1994) in support of this contention.
In its response, the State noted that the defendant’s conviction became final in 19 85, well after the enactment of Tennessee Code Annotated section 40-35-118 on July 1, 1994. 1 Thus, the State argues because Tennessee Code Annotated section 40-35-118 is prospective in nature, it has no affect on the defendant’s sentenc e and can afford the defe ndant no relief.
Without an evidentiary

hearing or appointment of counsel, the trial cou rt agree d with the Stateand determined that the statute cited by the def endant “in no way

affects the sentence under which Defendant labors .” The defendant subsequently appealed to this court, again claiming that “Armed Robbery By

Use Of A Deadly Wea

pon IS NOT SPECIF

IED as an offense for purpose of the Habi tual C rimin al Sta tute [ T ennessee Cod e Annotated section] 39-1-801 that allows it to be use[d] as prior conviction for Enhancement.” II. Analysis
Ini ti al ly, we note that “[g]enerally , trial court orders deny ing motions to correct sentences are notap pealabl e as a

matter of right.” Cox v. State , 53 S.W.3d 287, 293 (Tenn. Crim. App. 2001). However, “[a]s a general rule, a trial judge may correct an illegal, as opposed to a merely errone ous, sentence at any

time, even if it has become final.” State v. Burkhart , 566 S.W.2d 871, 873 (Tenn. 1978). “In cases arising from criminal convictions, the remedy of habeas corpus relief applies when the judgment is void. Thus the a ppropria te proce dure for

challen ging a

void sente

nce is a petition for habeas corpus relief.” Statev. Donald Ree Jones , No. M2000 -003 81-CC A-R3 -CD, 2000 W L 1520012, at *2 (Tenn. Crim. App. at Nashville, Oct

. 13, 2000) (citations omitted). In the instant case, the defendant has failed to comply with the procedural require ments for a habeas corpus action, namely in that he fa

iled to submit his judgment of conviction to the t

rial cou rt in conju

nction wit

h his motion, thereby pr

ecluding our review on that basis. See Tenn. Code Ann. § 29-21-107 (1997); Cox 53 S.W.3d at 292.
Neverth eless, this does not mean that there is no remedy a vailable. “A defendant may pursue appella te review from the denialof a motion to correct an illegal sentence through the common law writ of certiorari. See J on es , No. M2000-00381-CCA-R3-CD, 2000 WL 1520012, at *2 (Tenn. Crim. App. at Nashville, Oct. 13, 2000). The writ of certiorariis limited in application and is used to address a lower court’s illegal actions wh en th er e i s n o o th er pl ai n, sp ee dy, or ad eq ua te re me dy. See Cox , 53 S.W.3d a

t 294. Acc ordingl

y, i f the sen

tencing infirmity does not rise to the level of illega lity or voidness, an appeal via certiorari should not be g ranted. Id. “A void judgment ‘is one-3-

in which the

judgmen t is facially invalid bec ause the court lacked jurisdiction or authority to render the judgment or

because the defendant’s sentence has expired.’ We have recognized that a sentence imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton , 28 S.W.3d 910, 911 (Tenn. 2000) (citations omitted).
As we earlier noted, the defendant ar gued that Tennessee

Code Annotated section 40-35-120 affords him re lief from the sentence imposed as the result of his being f ound to be an habitual offender. However, the trial court correctly found that

such cod e sectio n was mad

e applic able toall offenses co mm it te d o n o r a ft er Ju ly 1 , 1 99 4, ne ar ly t en yea rs af ter the defendant’s judgment of conviction became final, and, thus, the c ode sect ion did not a

pply to the defendant. This court can discern no reaso n to gra nt a writ o f certio

rari to review the trial court’s denial of his motion. Therefore, we conclude that the de fendant’s arguments afford him no re lief.
III. Conclusion
Ac co rd in gl y, we dismiss the defe ndant’s a ppeal fr om the den

ial of his motion to correct an illegal sentence.

___________________________________ NORMA McGEE OGLE, JUDGE