# FILED
November 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
BARRY WELL

S, ) ) NO. 02C01-9610-CV-00358 Appellant, ) ) LAUDERDALE COUNTY VS. ) ) HON. JOSEPH H. WA LKER, III, RONNIE RICKARD, ) JUDGE ) Appellee. ) (Habeas Corpus)

UPON REMAND

FROM THE SUPREME C OURT OF TENNESSEE

FOR THE APPELLANT : FOR THE APPEL LEE : ROBERT L. HUTTON JOHN KNOX WALKUP One Commerce Sq., Ste. 1700 Attorney General and Repor ter Memphis, TN 38103 ELLEN H. POLLACK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General MARK E. DA

VIDSON Assistant

District Attorney

General 302 E. Market Street Somerville, TN 38068

OPINION FILED: ______________

AFFIRMED
JOE G. RILEY, JUDGE2 O P I N I O N
This case is befor

e this Cour

t upon a remand

from t he Suprem e Court of Tennessee in light of its decisi on in City of White House v. W hit ley , ___ S.W. 2d

___, No. 01S01-9711-CH-00259 (Tenn. October 12, 1998). We must d etermin e whether a judgment of

conviction punishable by incarceration whic

h was imposed bya non-lawyer judg e without objectionby the defendant is void if the judgment was entered prior

to the Supreme Court’s opini on in White House

. We conclude such a conviction is not v

oid; therefore, it may

not be attacked by habeas corpus . In this case, however, the

petitioner was gr

anted relief by the trial court as to a probation revocation order by a non-law yer judge due to the absenc e of waiver of

cou nsel. Thus, although we do not void the origi nal judgment of conviction, we affirm the trial court’s order of remand to the General Sessions Court for a new revocatio n hearing.

PROCEDURAL HISTORY

This Court originally

affirmed the authority of the non-law yer General Sessions judge to order the incar ceration of the petitioner. See Barry W ells v. Ronnie Rickard , C.C.A. No. 02C01-9610-C V-00358, Lauderdale County ( Tenn. Crim. App. filed June 9, 1997, at Jackson). The Supreme C ourt of Tennessee granted per m ission to appeal and on Nov ember 2, 1998, remanded the matter to this Co urt for r

econsid eration

in lig ht of City of White House v. Whitley , supra .
FACTS
Petitioner, Barry Wells, appeared before the non-lawyer General

Sessions jud ge of Lauderdale County on the charge of theft under $500.00, a Class A misdemeanor. He waived his r ight to counsel andtrial by jury and was found guilty by the non-lawyer

judge. He received a sentence of 11 monthsand 29 days with all but 30 days being s uspended.3 Subseque ntly, petitioner appearedbefore the same non-lawyer judge on a probation violation warra nt. Although the petitioner was not advised of his right to c oun sel and counsel was no t appointed to represent him, the non-lawyer judge revoked probation and ordered the defendant to serve the balance of his sentence. Petitioner

subsequently filed a habeas corpus action in the Circuit Court. The Circuit Court o rd ered a remand to the General Sess ions Court for a new heari ng due to the absence of a waiver of the r ight to counsel. Petiti oner appealed tothis Court allegin g the Circuit Court erred in failing to decl are that the non-lawye r General Sessions judge had no authority to order i ncarceration.

DISPOSITION

In City of White House v. Whitley , ___ S.W.2d at ___, the Supreme Court of Tennessee ruled that a non-lawyer judge cannot preside over trials of cr iminal offenses punishable by incarcer ation in the absence of a writte n waiver by the defendant c onsiste nt with Tenn. R. Crim. P. 5(c). The Court found such to be in violation of due process under Article I, § 8 of the Tennessee Constitution. The Court further announced theruling was only applicable to (1) cases tried or retried afterthe date of its opinion, and (2) cases on appeal in which the due process issue was raised in the tri al court and preserved as a ground for appeal. Id. In this case the due process issue was not raised in the General Sess ion s Court nor in the Circuit Court on appeal. It was raised for the firs

t time via habeas corpus . Habeas corpus relief is available on ly whe n the judgment is void as opposed to voidable. See Dykes v. Compton , ___ S.W.2d ___, ___ (Tenn. 1998); Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993). In White House the Supreme Court declared that its ruling only applied to cases tried or retried

after the filing of

its opinion and to cases on appeal in which the due process issue was properly raised and p rese rved. White House , ___ S.W.2d at ___. Thus, convictions enter ed by non -lawyer judges prior to White House are n ot void; otherwise, all such convictions would be subject to habeas1 We note that the pre sent General Sessions judge of Lauderdale Countyis a lawyerjudge.
2 The original opinion i n this Court was a

uthored by Presiding

Judge Joe B. Jones. Judge Jones is now deceased; therefore, only two judges participated in the present opinion.
4 corpus attack even aft

er the fi ling of White House

. In the case sub judice

the judgment of conviction by the no n-lawyer judge was not vo id. It cou ld not be attacked by habeas corpus . For this reason, the original judgment of conv iction should not be set asi de. Nevertheless, petitioner was accor ded some relief by the trial court. The trial court set aside theprobation r evocation order due to the abs ence of waiver of counsel. W e see no reason to disturb this rul ing. 1

CONCLUSION

Based upon the foreg oing, we a ffirm t he judgment of the trial court.The matter shall be remanded to the General Sessions Court for a new revocation hearing. 2

____________________________ JOE G. RILEY, JUDGE

CONCUR:

_______________________________ JOHN H. PEAY

, JUDGE