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Rule 5(d) provides in pertinent part, “If the defendant does not waive preliminary examination, the magistrate

shall set a preliminary examination within ten days if the defendant remains in custody and within thirty days if released

under applicable law.”

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

GIOVANNY MORPEAU v. STATE OF TENNESSEE

Criminal Court for Wilson 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 habeas

corpus by the Wilson County Criminal Court. On November 2, 2001, the Appellant was arrested

and charged with aggravated robbery. At the Appellant's initial appearance in the general sessions

court on November 6, 2001, he was found indigent, bail was set at $50,000, and a preliminary

hearing 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 grounds that his continued

confinement beyond ten days, without being afforded a preliminary hearing, violated Rule 5(d) of

the Tennessee Rules of Criminal Procedure.1 On November 30, 2001, the Appellant’s habeas corpus

petition was denied. On December 10, 2001, the Appellant filed notice of appeal. On December

19, 2001, the Appellant's preliminary hearing was conducted in the general sessions court at which

time he was bound over to the next term of the grand jury. During the January 2002 session of the

Wilson County Criminal Court, the Appellant was indicted by the grand jury on one count of

aggravated robbery.

Notwithstanding appellate counsel's zealous efforts to protect his client's procedural rights,

his claims on appeal fail for the following reasons. First, when a party seeks appellate review of

issues in this court, he or she has the responsibility of preparing a record which conveys a fair,

accurate, and complete account of what transpired with respect to the issues that form the basis of

his appeal. When the record is incomplete, 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. 1990); see also Tenn. R. App. P. 24. Of particular relevance

to the issue before us are the proceedings of the Wilson County General Sessions Court. In the

absence of a transcript or statement of the evidence, we are without a complete account of what

transpired at these proceedings, e.g., whether the Appellant waived his right to the “10 day” rule,

whether he requested additional time to retain counsel, or whether he agreed to the scheduled date

of December19th. Indeed, the arrestwarrant document contains the following handwritten notations,
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“11-7-01 to see Judge Tatum if does not make bond.” Moreover, neither the transcript nor a

statement of the evidence of the Appellant’s habeas corpus hearing were 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 continued custody without a preliminary hearing is now

moot as the preliminary hearing has now been afforded. Cases must be justiciable not only when

they are first filed but must also remain justiciable throughout the entire course of the litigation,

including the appeal. McIntyre v. Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994) (citing

Lewis v. Continental Bank Corp., 494 U. S. 472, 477, 110 S. Ct. 1249, 1253 (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 Procedure §§ 3533, 3533.10 (2d ed. 1984) (“Federal Practice and Procedure”). A

moot case is one that has lost its character as a present, live controversy; thus, a suit brought to

enjoin a particular act becomes moot once the act sought to be enjoined takes place. Id.

Finally, we agree with the State that the writ of habeas corpus was not the proper vehicle to

contest the Appellant’s pre-trial detention. Habeas corpus relief is available when any person is

illegally imprisoned or restrained of liberty. Tenn. Code Ann. § 29-21-103-104. In this case, the

Appellant’s pre-trial detention was based upon his unchallenged arrest pursuant to a warrant and his

inability to make bail. Within the context of a criminal proceeding, “the grounds upon which habeas

corpus relief will be granted are narrow.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

Habeas corpus relief is available in Tennessee only when it appears upon the face of the judgment

or the record of the proceedings upon which the judgment is rendered that a court lacked jurisdiction

or authority to sentence a defendant or that a defendant’s sentence or other restraint has expired.

Archer v. State 851 S.W.2d 157, 164 (Tenn. 1993). None of these circumstances are present in this

case.

Moreover, this court in State v. Brooks, 880 S.W.2d 390, 394 (Tenn. Crim. App. 1993), held

that a defendant’s remedy for the denial of a timely preliminary hearing,

is simply to request such a hearing and 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

not avoid the preliminary hearing by delaying in order to obtain an

indictment in the interim. This remedy does not include dismissal 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 habeas 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 appeal will be paid by the State of Tennessee.
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___________________________________________

DAVID G. HAYES, JUDGE

_____________________________________________

ALAN E. GLENN, JUDGE

___________________________________________

ROBERT W. WEDEMEYER, JUDGE