IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 26, 2005

STEVE G. HUTTON v. STATE OF TENNESSEE, 

GLEN TURNER, WARDEN

Appeal from the Circuit Court for Lawrence County

No. 24968 Robert L. Jones, Judge

No. M2005-00585-CCA-R3-HC - Filed December 16, 2005

Over a span of several years, the Petitioner, Steve G. Hutton, was convicted of eight counts of

passing worthless checks, one count of theft, one count of forgery, one additional count of passing

a worthless check, and one count of reckless endangerment. The Petitioner filed a petition for a writ

of habeas corpus, alleging that his continued confinement is illegal. The trial court dismissed the

petition, and we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court affirmed

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

JAMES CURWOOD WITT, JR., JJ., joined.

Steve G. Hutton, pro se, Whittenville, Tennessee.

Paul G. Summers, Attorney General and Reporter, Brent C. Cherry, Assistant Attorney General, for

the Appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

On January 4, 2000, the Petitioner pled guilty to eight counts of passing worthless checks and

was sentenced to an effective sentence of four years, to be served in the community corrections

program. On April 9, 2001, the Petitioner completed the community corrections program, and he

was placed on probation.

On January 31, 2002, the Petitioner pled guilty to one count of theft and one count of forgery,

and he was sentenced to an effective sentence of six years in community corrections, to be served

consecutively to the sentence he was serving for passing worthless checks. Also, on January 31,

2002, the Petitioner’s probation was revoked and he was again placed in community corrections for
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his passing worthless checks convictions.

On October 15, 2002, the Petitioner pled guilty to one count of passing a worthless check and

was sentenced to four years to be served in community corrections, concurrently with his other

sentences.

On June 3, 2003, the Petitioner pled nolo contendere to one count of reckless endangerment

and was sentenced to two years to be served consecutively to his earlier sentences. Also, on June

3, 2003, the Petitioner was removed from community corrections and ordered to serve his remaining

sentences in the Tennessee Department of Correction.

On February 2, 2004, an amended revocation order was executed, evincing that the Petitioner

had been revoked from community corrections and was to serve out his sentence in the Tennessee

Department of Correction.

On December 21, 2004, the Petitioner filed his Petition for Writ of Habeas Corpus, which

was dismissed by the trial court. It is from that judgment that the Petitioner now appeals. 

II. Analysis

In his petition for writ of habeas corpus, the Petitioner asserts that his continued confinement

is illegal because: (1) on October 15, 2002, his probation was revoked without a hearing, and he was

transferred to Community Corrections; (2) on June 3, 2003, his sentence to Community Corrections

was revoked without a hearing, and he was ordered to serve out his sentence in the Tennessee

Department of Correction; (3) his guilty pleas are void due to the trial court’s failure to advise him

of his right to a revocation hearing; (4) the trial court sentenced him to ten years when he had agreed

to a sentence of eight years under his plea agreement; (5) the trial court of Lawrence County had no

jurisdiction over the crimes he committed in Davidson County; (6) when the trial court ordered

restitution, it failed to specify the amount to be paid; (7) his sentences are void, because they

simultaneously sentence him to the Tennessee Department of Correction and the Community

Corrections program; and (8)the amended judgement of February 2, 2004, fails to reflect the amount

of jail and community corrections credits he should receive, and therefore “extend” his sentence.

When reviewing a petition for habeas corpus relief, the determination of whether relief

should be granted is a question of law. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

Accordingly, our review is de novo with no presumption of correctness given to the findings of the

court below. Id. The grounds upon which a writ of habeas corpus may be issued are very narrow.

McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when

it appears from the face of the judgment or record that either the convicting court was without

jurisdiction to convict orsentence the petitioner, or the petitioner’s sentence has expired. Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other

words, habeas corpus relief may only be sought when the judgment is void, not merely voidable.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
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The Petitioner’s first contention is that he was removed from probation and transferred to

community corrections without a hearing, and subsequently removed from community corrections

to serve out his sentence in the Tennessee Department of Correction without a hearing. However,

unlike the post-conviction petition, the purpose of the habeas corpus petition is to contest a void, not

merely voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn.

1968). A petitioner cannot collaterally attack a facially valid conviction in a habeas corpus

proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. Bomar, 364

S.W.2d 887, 888 (Tenn. 1963). We discern nothing in the record that would render the judgment

void on its face, thus, the Petitioner is not entitled to habeas corpus relief based upon this contention.

The Petitioner’s second contention is that his judgments are void because he was not advised

of his right to a revocation hearing. This is not a proper claim for habeas corpus relief because, even

if the claim was true, the allegation would merely render the judgments voidable, not void. See

Keith Hatfield v. David H. Mills, Warden, No.W2004-01566-CCA-R3-HC, 2004 WL 2848372, at

*1 (Tenn. Crim. App., at Jackson, Dec. 10, 2004) no Tenn. R. App. P. 11 application filed. 

The Petitioner’s third assertion is that the ten-year sentence imposed by the trial court for

forgery, theft, worthless check, and fraud, on February 2, 2004, is void, because he entered a guilty

plea pursuant to an agreement that he would receive an eight year sentence. Again, as noted above,

a writ of habeas corpus is available only when it appears from the face of the judgment or record that

either the convicting court was without jurisdiction to convict or sentence the petitioner, or the

petitioner’s sentence has expired. Archer, 851 S.W.2d at 164; Potts, 833 S.W.2d at 62. In this

instance, the Petitioner has failed to assert any jurisdictional violation, and he has not asserted that

the sentence has expired, therefore, we see no grounds for relief.

The Petitioner’s fourth contention is that his convictions for forgery, worthless check, theft,

and fraud are void, because he was tried in Lawrence County, but the crimes took place in Davidson

County, thus the Lawrence County court lacked jurisdiction. Although venue is a jurisdictional

matter, this Court has previously held that the issue is waived, if it is raised for the first time on

appeal. See State v. Turner, 919 S.W.2d 346 (Tenn. Crim. App. 1995). Furthermore, this Court has

held that:

Once a criminal defendant has solemnly admitted in open court that he is in fact

guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights occurring prior

to the entry of the guilty plea. State v. Hodges, 815 S.W.2d 151, 153 (Tenn. 1991).

We believe that a criminal defendant waives his right to challenge venue upon

pleading guilty. Recor v. State, 489 S.W.2d 64, 69 (Tenn. Crim. App. 1972); Weaver

v. State, 4 Tenn. Crim. App. 435, 472 S.W.2d 898, 902 (1971).

Ellis v. Carlton, 986 S.W.2d 600, 602 (Tenn. Crim. App. 1998). Thus, we conclude that the

Petitioner’s guilty plea served to waive any claim he may have had to a jurisdictional deficiency.

Therefore, even if one or more of the Petitioner’s crimes actually took place outside of Lawrence
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County, the Lawrence CountyCircuit Court had jurisdiction to convict the Defendant upon his pleas

of guilty. 

The Petitioner’s fifth contention is that the judgments of January 4, 2000, and October 15,

2002, ordering restitution, are void because they do not state a specific amount to be paid. Even if

the amount of restitution owed is not discernable from the record, this argument is not properly

before the Court. Tennessee Code Annotated section 29-21-101 (2000) provides that “[a]ny person

imprisoned or restrained of liberty, under any pretense whatsoever, . . . may prosecute a writ of

habeas corpus . . . .” The Tennessee Supreme Court has held that “a person is not ‘restrained of

liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself imposes a

restraint upon the petitioner’s freedom of action or movement.” Hickman v. State, 153 S.W.3d 16,

23 (Tenn. 2004). In Hickman, the court explained that “when the restraint on a petitioner’s liberty

is merely a collateral consequence of the challenged judgment, habeas corpus is not an appropriate

avenue for seeking relief.” Id. Because, in this case, the Petitioner’s claims regard monetary

restitution, and not a restraint of liberty, the Petitioner’s claims regarding restitution are not proper

grounds for habeas corpus relief. See Tenn. Code Ann. § 29-21-101; Hickman, 153 S.W.3d at 23.

The Petitioner’s sixth claim is that the judgments of January 4, 2000, January 31, 2002, and

October 15, 2002, are illegal because they reflect simultaneous sentences of different forms. We

note that the judgment forms for these offenses do in fact reveal that the boxes for “TDOC” and

“Community Based Alternative” were each marked, however, this alone is not enough to render the

judgments void. A writ of habeas corpus is available only when it appears from the face of the

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

the petitioner, or the petitioner’s sentence has expired. Archer, 851 S.W.2d at 164; Potts, 833

S.W.2d at 62. In this case, the clerical error is neither a jurisdictional defect, nor is it evidence of

an expired sentence, thus, we hold that the Petitioner is not entitled to relief on this issue.

Finally, the Petitioner contends that his right to due process was violated when the Lawrence

County trial court failed to state the amount of jail and community corrections credit to be applied

to his amended revocation order issued on February 2, 2004. While the trial court’s order does not

specify the amount of time to be applied to the amended revocation order, habeas corpus relief is not

available to a petitioner claiming a deficiency in the calculation of sentence credits. Michael K.

Kennedy v. State, No. M2003-02059-CCA-R3-HC, 2004 WL 2599490, at *2 (Tenn. Crim. App.,

at Nashville, Nov. 12, 2004), no Tenn. R. App. P. 11 application filed; Hancock v. State, No.

01C01-9710-CR-00489, 1998 WL 453682, at *1 (Tenn. Crim. App., at Nashville, July 30, 1998),

perm. to appeal denied (Tenn. Feb. 16, 1999); see also, State v. Warren, 740 S.W.2d 427, 428 (Tenn.

Crim. App. 1986). Even if the Petitioner’s claim of sentence reduction miscalculation had merit, an

habeas corpus proceeding would not be appropriate because “complaints regarding sentence credit

miscalculations that relate to release eligibility short of full service of the sentence do not warrant

habeas corpus relief.” Id. Accordingly, the Petitioner is not entitled to relief on this issue.
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III. Conclusion

In accordance with the foregoing authorities and reasoning, we affirm the trial court’s

judgment.

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ROBERT W. WEDEMEYER, JUDGE