IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 14, 2015

DANIEL WADE WILSON v. RANDY LEE, WARDEN

Appeal from the Criminal Court for Johnson County

No. CC-15-CR-21 Stacy L. Street, Judge

No. E2015-00791-CCA-R3-HC – Filed November 23, 2015

_____________________________

Petitioner, Daniel Wade Wilson, appeals the summary dismissal of his petition for a writ 

of habeas corpus. Petitioner alleges that his conviction for felony murder is void because 

the trial court violated the law of the case doctrine by merging the conviction for second 

degree murder into the conviction for felony murder in direct contravention of this 

Court’s directions upon remand of Petitioner’s direct appeal. Petitioner also alleges that 

his conviction for felony murder violates the constitutional protection against double 

jeopardy because he was already serving a sentence for the second degree murder 

conviction before he was retried for felony murder. Upon our review of the record, we 

find that the trial court did not violate the law of the case doctrine and that Petitioner has 

failed to provide an adequate record for review of his double jeopardy claim. Therefore, 

we affirm the judgment of the habeas corpus court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD 

WITT, JR., J., joined. ROBERT H. MONTGOMERY, JR., J., not participating.

Daniel Wade Wilson, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Lacy Wilber, Senior Counsel, 

for the appellee, State of Tennessee.

OPINION

This is Petitioner’s appeal from the Johnson County Criminal Court’s summary 

dismissal of his petition for writ of habeas corpus. 
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Factual and Procedural Background

Petitioner was indicted by a Sullivan County Grand Jury for one count of first 

degree felony murder, one count of first degree premeditated murder, and one count of 

especially aggravated robbery for the 1999 death of David Vestal. See State v. Daniel 

Wade Wilson, No. E2000-01885-CCA-R3-CD, 2001 WL 872442, at *1 (Tenn. Crim. 

App. Aug. 2, 2001), perm. app. denied (Tenn. Mar. 11, 2002) (“Wilson I”). Petitioner 

was convicted of felony murder, second degree murder, and especially aggravated 

robbery. The trial court merged his convictions for felony murder and second degree 

murder and sentenced Petitioner to life imprisonment. The trial court also sentenced 

Petitioner to twenty-three years for especially aggravated robbery, and ordered the 

sentences to be served consecutively. Id.

On appeal, a panel of this Court reversed Petitioner’s convictions for felony 

murder and especially aggravated robbery because the trial court did not instruct the jury 

on lesser-included offenses. Id. at *13, *15. This Court affirmed Petitioner’s conviction 

for second degree murder and instructed the trial court as follows: 

We reverse the Defendant’s felony murder and especially aggravated 

robbery convictions, and remand the case for a new trial on both counts. 

The Defendant’s conviction for second degree murder, which the trial court 

originally merged into the felony murder conviction, is hereby reinstated 

and remanded for sentencing. Following retrial of the felony murder count, 

the trial court is instructed to merge any resulting conviction of felony 

murder or of a lesser included offense with the Defendant’s second degree 

murder conviction.

Id. at *19. The Tennessee Supreme Court denied Petitioner’s application for permission 

to appeal.

According to Petitioner, the trial court sentenced him to twenty-five years for 

second degree murder on September 3, 2002.1 Petitioner was then retried for felony 

murder and especially aggravated robbery in January 2003. Petitioner was convicted as 

charged of both counts, and on March 17, 2003, he was sentenced to consecutive 

sentences of life imprisonment and twenty-three years, respectively. The judgment form 

for the felony murder count, which is included in the record on appeal, states in the 

special conditions section that the “[c]onviction for [second] degree murder in Count #1 

 

1

Petitioner did not include the judgment for the second degree murder count with his habeas 

corpus petition, and it is not in the record on appeal. These facts about the procedural history are gleaned 

from Petitioner’s appellate brief.
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will merge with this conviction.” This Court affirmed Petitioner’s convictions for felony 

murder and especially aggravated robbery on appeal. State v. Daniel Wade Wilson, No. 

E2003-02070-CCA-R3-CD, 2004 WL 1171710, at *9 (Tenn. Crim. App. May 26, 2004), 

no perm. app. filed (“Wilson II”).

Petitioner then filed a petition for post-conviction relief on July 7, 2008, alleging 

that he received ineffective assistance of counsel and that his confession was coerced. 

See Daniel Wade Wilson v. State, No. E2010-00451-CCA-R3-PC, 2011 WL 3911084, at 

*2 (Tenn. Crim. App. Sept. 7, 2011), perm. app. denied (Tenn. Jan. 11, 2012) (“Wilson 

III”). Petitioner asserted that the statute of limitations should be tolled because his 

attorney failed to withdraw from representation and never filed an application to appeal 

his case to the supreme court. Id. This Court held that Petitioner was not entitled to due 

process tolling of the statute of limitations and dismissed the appeal. Id. at *11. 

On March 5, 2015, Petitioner filed pro se the petition for writ of habeas corpus 

that is the basis of this appeal. Petitioner alleged that the trial court failed to follow the 

instructions of this Court from his first appeal when it merged the conviction for second 

degree murder into the conviction for felony murder and that his conviction for felony 

murder violated the protection against double jeopardy because he was already serving 

his sentence for second degree murder. On March 26, 2015, the State filed a motion to 

dismiss the petition. On April 6, 2015, the habeas corpus court entered an order 

summarily dismissing the petition. Petitioner filed a timely notice of appeal.

Analysis

In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any 

pretense whatsoever. . . may prosecute a writ of habeas corpus, to inquire into the cause 

of such imprisonment and restraint.” T.C.A. § 29-21-101. While there is no statute of 

limitations for filing a petition for a writ of habeas corpus, the grounds upon which 

habeas corpus relief may be granted are narrow. Hickman v. State, 153 S.W.3d 16, 20 

(Tenn. 2004). Habeas corpus relief is only available when it appears on the face of the 

judgment or record that the convicting court was without jurisdiction to convict or 

sentence the defendant, or that the defendant is still imprisoned despite the expiration of 

his sentence. Id.; Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In other words, 

habeas corpus relief may be granted only when the judgment is void, rather than merely 

voidable. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). A void judgment is 

“one that is facially invalid because the court did not have the statutory authority to 

render such judgment.” Id. at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 

1998)). A voidable judgment is “one that is facially valid and requires proof beyond the 

face of the record or judgment to establish its invalidity.” Id. 
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The petitioner bears the burden of showing, by a preponderance of the evidence, 

that his judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). However, if 

the habeas corpus court determines that there is nothing on the face of the judgment to 

indicate that the convictions contained therein are illegal, it may summarily dismiss the 

petition without the appointment of counsel and without an evidentiary hearing. 

Summers, 212 S.W.3d at 261. Because the issue of whether habeas corpus relief should 

be granted is a question of law, we shall conduct a de novo review without any 

presumption of correctness given to the decision of the lower court. Id. at 255.

Petitioner argues that the trial court violated the law of the case doctrine when it 

merged the conviction for second degree murder into the conviction for felony murder 

rather than merging the felony murder conviction into the second degree murder 

conviction. “[U]nder the law of the case doctrine, an appellate court’s decision on an 

issue of law is binding in later trials and appeals of the same case if the facts on the 

second trial or appeal are substantially the same as the facts in the first trial or appeal.” 

Memphis Pub. Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998). The doctrine “is not a constitutional mandate nor a limitation on the 

power of a court,” but “a longstanding discretionary rule of judicial practice which is 

based on the common sense recognition that issues previously litigated and decided by a 

court of competent jurisdiction ordinarily need not be revisited.” Id. “[I]t is a controlling 

principle that inferior courts must abide the orders, decrees and precedents of higher 

courts.” State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (quoting Barger v. Brock, 535 

S.W.2d 337, 341 (Tenn. 1976)).

In Petitioner’s first direct appeal, this Court stated, “Following retrial of the felony 

murder count, the trial court is instructed to merge any resulting conviction of felony 

murder or of a lesser included offense with the Defendant’s second degree murder 

conviction.” Wilson I, 2001 WL 872442, at *19 (emphasis added). We disagree with 

Petitioner’s reading of this Court’s instruction that the conviction for felony murder must 

be merged into the conviction for second degree murder. Under the law of merger, when 

the defendant is convicted under two alternative theories for the same offense, “the 

greater charge stands and the guilty verdict on the lesser charge merges into the greater 

charge.” State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993), overruled on other 

grounds by State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998). Therefore, the trial 

court did not violate the law of the case doctrine when it merged Petitioner’s conviction 

for second degree murder into his conviction for felony murder.

Petitioner also argues that his conviction for felony murder violates the 

constitutional protection against double jeopardy because he was already serving a 

sentence for the second degree murder conviction at the time he was retried for felony 

murder. The Double Jeopardy Clauses of both the United States and the Tennessee 

Constitutions guarantee that no person shall be twice put in jeopardy of life or limb for 
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the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The Double Jeopardy 

Clause provides three separate protections: (1) protection against a second prosecution 

for the same offense after acquittal; (2) protection against a second prosecution for the 

same offense after conviction; and (3) protection against multiple punishments for the 

same offense. State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012) (citing North 

Carolina v. Pearce, 395 U.S. 711, 717 (1969), abrogated on other grounds by Alabama 

v. Smith, 490 U.S. 794 (1989)). To avoid a double jeopardy issue when a defendant is 

convicted on more than one theory of an offense, the trial court should enter only one 

judgment of conviction imposing a sentence for the surviving conviction and noting the 

merger of the additional counts. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. 

App. 1997); see also State v. Ashley Bradshaw, No. W2014-00175-CCA-R3-CD, 2015 

WL 523688, at *8 (Tenn. Crim. App. Feb. 9, 2015) (Witt, J., concurring) (explaining the 

rationale behind the one judgment rule), perm. app. denied (Tenn. May 18, 2015). If the 

trial court enters separate judgment forms and separate sentences on each count that 

should be merged, the proper remedy is the vacation of the judgment for the merged 

conviction and the entry of a corrected judgment form for the surviving conviction. See 

State v. Jameca M. Tipler, No. W2014-00288-CCA-R3-CD, 2015 WL 721030, at *10 

(Tenn. Crim. App. Feb. 19, 2015), no perm. app. filed; State v. Jose L. Hidalgo, No. 

M2011-01314-CCA-R3-CD, 2013 WL 1197726, at *11 (Tenn. Crim. App. Mar. 26, 

2013), no perm. app. filed; State v. Aquellis Quintez Tucker, No. W2007-02361-CCAR3-CD, 2008 WL 4648365, at *9 (Tenn. Crim. App. Oct. 21, 2008), no perm. app. filed.

Petitioner in this case failed to attach a copy of the judgment form for the second 

degree murder conviction to his petition. According to our supreme court:

The petitioner bears the burden of providing an adequate record for 

summary review of the habeas corpus petition. . . . [A]n adequate record 

for summary review must include pertinent documents to support [the 

petitioner’s] factual assertions. When such documents from the record of 

the underlying proceedings are not attached to the habeas corpus petition, a 

trial court may properly choose to dismiss the petition without the 

appointment of counsel and without a hearing. 

Summers, 212 S.W.3d at 261. The procedural provisions of the habeas corpus statute are 

mandatory and must be followed scrupulously. See Archer, 851 S.W.2d at 165. From 

the record before this Court, we have no way of knowing whether the trial court vacated 

the judgment for second degree murder when it sentenced Petitioner to felony murder or 

whether there still exists a valid judgment and sentence for second degree murder. 

Because the record is inadequate for our review, we will not address the merits of 

Petitioner’s double jeopardy claim.
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Conclusion

Based on the foregoing, we affirm the decision of the habeas corpus court to 

summarily dismiss the petition without a hearing and without the appointment of counsel.

_________________________________

TIMOTHY L. EASTER, JUDGE