### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 25, 2001
EDDIE F. DEPRIEST v. KEVIN ME YERS, WARDEN
Direct Appeal from the Circuit Court for Wayne County

No. 12378 Robert L. Jones, Judge

No. M2000-02312-CCA-R3-PC - Filed July 6, 2001

The petitioner, Eddie F. Depries t, appeals as of right from the Wayne County Circuit Court’s dismissal of his petition for habeas corpus relief. Petitioner claims that the circuit court lacked the necessary jurisdiction to conv

ict him because he was

a juvenile

when he committed the offense and
a proper transfer hearing ha d not be en conducted. After a review of the record, we affirm the judgment of the tr

ial court. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.

T H OMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., a n d J ERRY L. S MITH , J., joined. Eddie F. Depriest, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorne y General and Reporter; Pet

er M. Coughlan, A

ssistant Attorney

General; Mike Bottoms, District Attorney General; and Todd R. Kelley, Assistant District Attorney Ge

neral, for the appellee, State of Tennessee.

OPINION

Petitioner was convicted

by a jury of first degr

ee murder and assault with int

ent to commit first degree murder in July of 1989. He was subsequently sentenced to life imprisonment for the first degree murder charg

e and fifteen y

ears for the ass

ault conviction. Th

is Court affirmed

Petitioner’s judgments

of conviction on dir

ect appeal, State v. Gregor y Deway ne Williams and Eddie Fitzge rald Deprie st , No. 96 (Tenn. Crim. App., Jackson, Octo

ber 3, 1990), and

affirmed the pos

t-convic tio n court’s denial of post-conviction relief, Eddie Depriest v. State , No. 02C01- 9512-CR-00384, Shelby County (Tenn. Crim. App., Jackson, March 13, 1997) perm. to app. denied (Tenn. 1997).

On May 26, 2000, Petitioner filed a petition for habeas corpus relief on the ground that the trial court did not have jurisdiction to convict him. Petitioner argued that because he was a minor when he committed the offenses, the juvenile court had “exclusive jurisdiction” over any judicial-2-

proceedings which ensued and this rendered all other actions against Petitioner “null and void.” The Statefiled a motion to dismiss Petition er’ s application for a writ of habeas corpus on August 24, 2000, and the trial court granted the State’s motion, dismissing the petition by written

order the same day.

Petitioner

now appeals the Wa

yne County

Circuit Court’s dismissal of his petition for habeas corpus relief. The gist of Petitio ner’s argumen

t remains one of ju

risdiction. In

his brief, Petitioner claims that he was indicted for an offense committed on Jun e 2, 1988, twelve d ays prior to

his eighteenth

birthday which occu

rre d on June 14, 1988. The record contains a copy of Petitioner’s birth certificate wh

ich verifies his bi

rth date as June 14, 1 970. A copy o f th e indictment was not included.

Petitioner’s main contention is that the juvenile court retained “exclusive jurisdiction” over all criminal procee

dings against h

im because he was

a minor at the time

he committed the of

fenses. Petitioner argues that the

law requires a tr

ansfer hearing

to remove jurisd

iction from the juvenile court to the circuit cou

rt in the case of a minor defendant, and the absence of a valid transfer hearing deprived the circuit

c ourt of jurisdiction. As a result, Petitioner maintains that his conviction and sentence are void and habeas corpus relief is proper in this case. We disagree

. Our supreme cour

t has held that the r

ight to a transfer hearing is “sufficiently fundamental to be considered a matter of due process, in the context of juvenile justice.” Sawyers v. S tate , 814 S.W.2d 725, 729 (Tenn. 199 1). The transf er hearing in juvenile court has been likened to a preliminary

hearing with

regard to the issue of probable cause. Statev. Womack , 591 S.W.2d 437, 443 (Tenn. Crim. App. 1979). However, “the absence of a transfer order ca nnot be said to affect the [criminal] court’s subject matter jurisdiction , whic h, in a real sense, is concurrent with that of the juvenile court as to certain offenses committed by children falling within a specifie d age span.” S a wyers , 814 S.W.2d at 729 (citations omitted). The age of a juvenile defendant has been characterized, not as an element of subject matter jurisdiction, but as a fact which entitles the defendant to certain procedural rights. Id. And, the lack of a valid transfer hearing does not deprive
a criminal court of jurisdiction, but has been described instead as a “procedural deficiency.” Id. ; see also State v. Hale , 833 S.W.2d 65, 67 (Tenn. 1992).

In li ght of the Tennessee Supreme Court’s decision in Sawyers v. S tate , 814 S.W.2d 72 5 (Tenn. 1991), we

hold that the absence of a transfer order did not affect the circuit court’s subject matter jurisdiction with regard to convicting Petitioner. We are mindful that in Sawyer , the supreme court was faced with fac

tual circumstanc

es similar to those

in the instant case

, i.e., it was aske

d to determine whether relief

should have been granted to a petitioner who was actually a juvenile at the time of the offense, b

ut who was not affo

rded a transfer

hearing prior t

o his conviction in

criminal court. The supreme court granted the petitioner relief in the form of a remand to the trial court for further proceedings to determine whether transfer would have been appropriate. However , the petitioner in Sawyer

was appealing a judgment from a post-conviction proce eding whic

h was, sign ifi cant ly, a voidable judgment. By contrast, habeas corpus relief is available only when the-3-

judgment contested is void. T

his is the crucial distinction between the result in Sawyer and our present decision.

In Tennessee, grounds upon which habeas corpus relief will be granted are limited in nature and scope. Taylor v. Sta te , 995 S.W.2d 78, 83 (Te nn. 1999); Archer v. State, 851 S.W.2d 157 , 161-62 (Tenn. 1993); Passarella v. Stat e , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). A habeas corpus pe tition “may only be utilized to successfully contest void, as opposed to voidable, judgments.” Taylor , 995 S.W. 2d at 83 (cit ing Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992)). “A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction
or authority to render the judgment or because the defe ndant’s sentence has expired.” Id. (citing Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998)). By contrast, a voidable judgment is one which is “ facially valid and requires the introduction of proof bey ond the face of the record or judgment to e sta bli sh i ts i nva lid ity. ” Id. (citations omitted). The petitioner bears the burden of demonstrating by a preponderance of the evidence that the judgment

of conviction is

void or that his term of confinement has expired. Passarella , 891 S.W.2d at 627.
Here, we have already determined that the absence of a transfer ord er did not dep rive the circuit court of jurisdiction or authority to convict Petitioner. Moreover, Petitioner’s allegations are based on an alleged due process violation, which is not cognizable in a petition for writ of habeas corpus since it would rend er the judgment m

e rely voidab le, not void. As such, Petitioner’s issue would have been more appropriat ely presen

ted in a petition for

post-conviction r

elief, similarly

to the claims of

the petitioner in Sawyer . However, at the time of Petitioner’s conv

iction, the statute of lim itations for post-conviction relief was three (3) years. See Tenn. Code Ann. § 40-3 0-10 2 (1990), repealed by Acts 1995, Ch. 20 7, § 1. The petitioner was convicted in July 1989 and filed the present

petition in May

2000. Thus, the statute of limitations period for post-conviction relief has expired. Petitioner is not entitled to relief.

CONCLUSION

For the above re

asons, we AFFI

RM the judgment of

the trial court.

____________________________________ THOMAS T. WOODALL, JUDGE