1 Ru le 5(d) pr ovides i n perti nent par t, “ If t he defendant

does not waive prelim inary e xam ination , the m agistrate shall set a pr elimi nary examinat ion withi n ten days i f the de fendant remains in cus tody a nd w ithin thirty d ays if rele ased und er app licable la w.” 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE
GIOVANNY M ORPEAU v. STATE OF TENNESSEE

Criminal Co

urt for Wilso n County No. 01-1854

No. M2002-00060-CCA-R3-CO - Filed August 12, 2002

ORDER
The Appellant, Giovanny Morpeau, appeals from the denial of his petition for writ of hab eas corpus by the Wil son County Criminal C ourt. On No vember 2, 2001, the Appel lant was arre sted and charged w ith aggr avated r obbery. At the Appel lant's initialappearance in the general sessions court on November 6, 2001, he was found indigent, bail was set at $50,000, a nd a pre liminary heari ng was scheduled for December 19, 2001. On November 29, 2001, the Appellant filed a petition for writ of habeas corpus seeking release from confinement upon groun ds that his co ntinued confinement

beyond ten days, without being afforded a prelimin ary hearing, violated Rule 5(d) of the Tennessee R

ules of Cri minal Pro cedure. 1 On November 30, 2001, the Appellant’s habeas corpus petition was denied. On December 10, 2001, the Appellant filed notic e o f appeal. O n Decemb er 19, 2001, the Appellant' s prelimin ary hearing w as conducte d in the gene ral sessions court at whi ch time he was bound over to the next term of the grand jury. During the January 2002 session of the Wilson County Cri min al Cou rt, the Appellant was indicted by the grand jury on one count of aggravated robbery. Notwithstanding appellate counsel's ze alous effo rts to protec this client' s procedura l rights, his claims on appeal fail for the following reasons. First, when a pa rty seek s appellate review of issues in this court, h

e or she has th

e responsib ility of pre

paring a reco

rd which con

veys a fair, accurate, and compl ete account o f what tran spired with respect to the issues that form the basis of his appeal. W

hen the record is incomple te, this court is precluded from considering the issues, and we must conclusively presume the judgment of the trial court was correct. State v. Matthews , 805 S.W.2d 776, 783 (Tenn. Crim . App. 199 0); see also Tenn. R. App. P. 24. Of particula r releva nce to the issue bef

ore us are the

proceeding s of the W

ilso n County G en eral Sessions Court. In the abs ence of a tr anscript or s tatement o f the eviden ce, we are w ithout a com plete accoun

t of what transpired at these proceedings, e.g., whether the Ap pel lant waived his right to t

he “10 day” r

ule, whether he reques ted addit ional ti me to retain cou nsel, or whe

ther he agree d to the sche duled date of December 19 th

. Indeed, the arrest warrant doc ument con tains the fo llowing handwritten no tations,-2-

“11-7-01 to see Judge

Tatum if does not make bond.” More over, neither the transc ript nor a statementof the evidence of the Appellant’s habeas corpus hearing w ere included in the record. Because the record of these proceedings, the focal point of this appeal, have been omitted, we are unable to address the issues upon their merits. Accordingly, the issue is waived. Second, the Appellant’ s claim of c ontinued cu stody witho ut a prelim

inary hearin g is now moot as the prelimina

ry hearing h as now been

afforded . Cases mu st be justicia ble not only

when they are first fi led but mu st also remain justiciab le throughout the entire co urse of the l itigation, including the appeal. McIntyre v. T raughber, 884 S.W .2d 134, 13 7 (Tenn. Ct

. App. 1994) (citing Lewis v. Continental Bank Corp. , 49 4 U. S. 472, 477, 110 S. Ct. 1249, 1 253 (1990); Kremens v. Bartley , 431 U. S. 119, 128-29, 97 S. Ct. 1709, 1715 (1977); 13A Charles A. Wright et al., Federal Practice and Proced

ure §§ 3533, 3533.10 (2d ed. 1984) (“Federal Practice and Procedure”). A moot case is one that has lost its character as a pre sent, live controversy; thus, a suit broug ht to enjoin a particular act becomes moot once the act sought to be enjoined takes pla ce. Id. Finally, we agree with the State that the writ of habeas corpus was not the proper vehi cle to contest the Appellant’s pre-trial detention. H abeas corpu s relief is av ailable whe n any person

is illegally impri son ed or restrained of liberty. Tenn. Code Ann. § 29-21-103-104. In this case, the Appellant’ s pre-trial det

ention was b ased upon h

is unchallenged arrest pursuant to a warrant a nd his inability to make bail. Within the context of a criminal

proceeding , “the grounds upon whi ch habeas corpus rel ief

will be gran

ted are narro w.” State v. Ritc hie , 20 S.W. 3d 624, 630 (Tenn. 200 0). Habeas corpus relief is availab le in Tennes see only when it appears upon the face of the judgment orthe record

of the proc eedings upo n which the j udgment i s rendered th at a court lacked jurisdiction orauthority to

sentence a defendant or that a defendant’s sentence or other restraint has expired. Archer v. State 851 S.W.2d

157, 164 (T enn. 1993) . None of t hese circum stances are p

resent in thi s case. Moreover, this court in State v. Bro oks , 880 S.W .2d 390, 39 4 (Tenn. Cr im. App. 1993), held that a defendant’s remedy for the denial of a timely preliminary hearing,

is simply to r

equest such

a hearing an d to move the court within thirty days of

the arrest to dismiss any indictment returned while the hearing is pending. . . . [T]he remedy only ensures that the state may notavoid the pr

eliminary hear

ing by delaying in order t o obtain an indictmentin the interim. This remedy does not inc lude dism issal of the original warrant upon which the defendant was arrested.
Brooks , 880 S.W.2d at 394. In this regard, we would add that the remedy does not include release of the defendant from custody via writ of hab eas corpus. For the above reasons, we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals. It appearing that the Appellant is indigent, costs of this app eal will be pa

id by the Sta

te of Tenne ssee.-3- _ ________________

_________________________ _ DAVID G. HAYES, JUDGE

__________________

________ __________________

_ ALAN E. GLENN, JUDGE

________________

________________

__________

_ ROBERT W. WEDEMEYER, JUDG E