### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs O ct obe r 26, 200 5
STEVE G. HUTTO N v. STAT E OF TENNE SSEE ,

GLEN TU RN ER, WAR DEN
Appeal f romthe Circ uit Court for Law renceCounty No. 24968 Robert

L. Jones, Jud ge

No. M2005- 00585-CCA -R3-HC - F iled Dece m ber 16, 2005

Over a span of

sever al y ear s , t h e P etitioner, Steve G. H utton, was convicte d of eig ht counts of passing worthless che cks, one c ount of theft, one count of forg ery , one additional count of passing
a wo rthle ss c he c k, a nd on e c ou nt of re c kle ss e nd a ng e rm e nt. Th e Pe tit ion e r f ile d a pe tit ionfo r a

writ of habeas co rpus, alleg ing that his continued confineme nt is il leg al. The tria l court dismissed the pe tit ion , a ndwe a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opi nion of the court, in which T H O M A S T. W O O D A LL and J A M ES C UR WO OD W I TT , J R ., J J ., joined. Steve G. Hutton, pro se, Whittenville, Tennesse e. Paul G. Summers, Attorney Gene ral a nd Reporter , Br ent C. Cherry , Assistant Attorney Gene ral, for the Appellee , State of Tenne ssee.
OP IN ION I. F acts and P roce dural Hi story

On J anuary

4, 2000, the Petitioner pled g uiltyto eig ht counts of passing worthless che cks and was sente nced to a n eff

ective se ntence of four

y ear s, to be serve d in the community corr ections prog ram. On A pril 9, 2001, the Petitioner completed the community corr ections prog ram, a nd he was plac ed on probation.

O n J a n u ar y 3 1 , 2 0 0 2 , t h e P e t i t i o n e r p l e d g u i l t y t o o n e c o u n to f t h e f ta n d o n e c o u n t o f

f o r g e r y, and he w as sentenced to an effec tive sentenc e of six y ear s in community corr ections, t o be ser ved
consec uti v el y t o the sentenc e he w as ser ving f or passing worthless che cks. Also, on J anuary 31, 2002, the Petitioner’s probation was revoke d and he was ag ain place d in communitycorr ections for-2-

his pa ssi ng wo rthle ss c he c ks c on vic tio ns
. On Octobe r 15, 2002, the P etitioner pl ed guilty to one count of passing a worthless chec k and was sente nced to f

our y ear s to be serve d in communi t y co rrections, concur rently with his other
se nte nc e s.
On J une 3, 2003, the Petitioner pled nolo c ontender e to one count of re ckless endang erme nt and wa s sentence d to two y ear s to be serve d consec utively to his e arlier

sentenc es. Also, on J une 3, 2003, the Petitioner was r emoved f rom community

corr ections and or dere d to serve his re maining sentenc es in the Tenne ssee De partment of Corr ection.

On Fe bruary

2, 2004, an amended re vocation orde r wa s executed, evinc ing that the Petitioner had bee n revoke d from communit y corr ections and was to serve out his sentence in the T ennesse e Depa rtment of Corre ction.

On Dec ember

21, 2004, the Petitioner filed his Petition for Writ of Habe as Corpus, which was dismissed by

the trial court. I t is from that judgme nt that the Petitioner now appe als.

II. Ana lys is

I n his petition for writ of habe as cor pus, the Petitioner asserts that his continued confineme nt is ill eg al bec ause: (1) on October 15, 2002, his probation was revoked without a hearing , and he w as transfe rre d to Comm unity Correc tions; (2) on J une 3, 2003, his sentence to Comm unity Correc tions
was re voked without a hea ring , and he w as orde red to s erve out his sentence in the Tenne ssee De pa rt me nt o f C or

re c tio n; ( 3) his g uil ty

ple a s a re vo id d ue to the tr ia l c ou rt ’s failu re to a dv ise him of his rig ht to a revocation hearing; (4) the trial c ourt sentenc ed him to ten y ear s when he had ag ree d to a sentenc e of eig ht y ear s under his plea ag ree ment; (5) the tria l court of L awr ence Countyhad no jurisdiction over the c rimes he c ommitt ed in Davidson County ; ( 6 ) when the trial court orde red restitution, it failed to specify the amo u n t t o b e p aid; (7) his sentenc es ar e void, bec ause the y sim ult a ne ou sly

se ntenc e hi m to th e Te nn e sse e De pa rt me nt o f C or

re c tio n a ndthe Com mun ity Correc tions progr am; and (8) the amende d judge ment of F ebrua ry 2, 2004, fails to ref

lect the a mount of jail and c ommunitycorr ections cr edits he should rec eive, a nd there fore “extend” his sentenc e.
When review ing a

petition for habe as cor

pus relief , the d etermination of whether relief should be g rante d is a quest i o n o f l aw
. Hart v. St ate, 21 S.W.3d 901, 903 (Tenn. 2000). Acc ording ly , our revie w is de novo with no presumption of corr ectne ss g iven to the finding s of the court be low. I d. The g rounds upon which a writ of habeas corpus may be issued ar e very

narr ow. McL aney v. Be ll, 59 S.W .3d 90, 92 (Tenn. 2001). A writ of ha beas c orpus is available only when it a ppear s from the fac e of the judgme nt or rec ord that either the convicting co u rt wa s without jurisdiction to convic t or sentenc e the petitioner, or the petitioner’s sentenc e has expired. Arche r v. State, 851 S.W .2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W .2d 60, 62 (Tenn. 1992) . I n other words, habe as cor

pus rel i ef may

only be soug ht when the judg ment is void, not m ere ly voidable. Tay lor v. State, 995 S.W .2d 78, 83 (Tenn. 1999)

.-3-

Th e Pe tit ion e r’ s f

ir st c on te nti on is th a t he wa s r e mov e d f ro m pr ob a tio n a ndtr a ns fe rr e d to community

corr ections without a hea ring , and subseque ntly

remove d from community corr ections to se rve out his sentenc e in the Tenne ssee Depa rtment of Correc tion without a hearing . Howeve r, unlike the post-conviction petition, the purpose of the habe as cor

pus petition is t o contest a void, not
mere ly voidable, judg ment. State ex rel. Newsome v. H ende rs o n , 4 2 4 S.W .2d 186, 189 (Tenn. 1968). A pe titioner cannot c ollatera lly attack a fac ially valid conviction in a habe as cor pus proce eding

. Potts v. State, 833 S.W .2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. B omar, 364 S.W .2d 887, 888 (Tenn. 1963) . We disc ern nothing in the r ecor d that would rende r the judg ment void on its face, thus, the Petit ioner is not entitled to habea s corpus re lief base d upon this contention.

The Petitioner’s se cond conte ntion is t hat his judgme nts are void because he wa s not advised of his rig ht to a revoc ation hearing. T his is not a proper claim for ha beas c orpus re lief bec ause, e ven if the cla im was true, t h e alleg ation would mere ly rende r the judg ments voidable, not void. See Keith Hatf

ield v. David H. Mills, Warden, No.W2004-01566-CCA-R3-HC, 2004 WL 2848372, at *1 (Tenn. Crim. App., at J ackson, D ec. 10, 2004) no Tenn. R. App. P. 11 application filed.

The Petitioner’s third assertion is t hat the ten- y ear sentenc e imposed by

the trial court for fo rg e ry , th e ft , w or

thl e ss c he c k, a nd fr aud , on F e br ua ry 2, 20 04 , is vo id, be c a us e he e nte re d a g uil ty plea pursuant to an ag ree ment that he would re ceive an eig ht y ear sentenc e. Ag ain, as noted a bove,
a writ of habea s corpus is a vailable only when it a ppear s from the fac e of the judgme nt or rec ord that either the convicting court wa s wi t h o u t j urisdiction to convict or sentenc e the pe titioner, or the pe tit ion e r’ s se nte nc e ha s e xp ir ed. Arch er, 851 S. W.2 d at 16 4; P ott s, 83 3 S. W.2 d at 62 . In th is instance, the Petitioner has fa iled to a ssert any jurisdictional violation, and he has not asserte d that the sentenc e has e x pired, ther efor e, we see no g rounds for r elief.

Th e Pe tit ion e r’ s f

ou rth c on te nti on is that his co nv ic tio ns fo r f or g e ry , w orthl e ss c he c k, the ft , and fr aud ar e void, bec ause he was tried in L awr ence County , but the crimes took plac e in Davidson County , thus the L aw re n ce Countycourt lac ked jurisdiction. Although ve nue is a jurisdictional matter, th is Court has previously held that the issue is waive d, if it is raised for the first time on appea l. See State v. Turne r, 919 S.W.2d 346 (Tenn. Crim. App. 1995) . Furthermore , this Court has he ld that:
Once a criminal defendant has s o l em n l y admi tted in open court that he is in fact g uil ty of the of fe ns e wi th w hic h h e is c ha rg e d, he ma y

no t th e re a ft e r r a ise independe nt claims relating to the deprivation of constitutional rig hts occurring prior to the entry

of the g uiltyplea. State v. Hodge s, 815 S.W .2d 151, 153 (Tenn. 1991)

. We be lieve that a criminal defe ndant waives his right to c halleng e v en u e upon pleading g uilty . 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. C arlton, 986 S.W.2d 600, 602 (Tenn. Crim. App. 1998). Thus, we c o n cl u d e t h at the P e t i t i o n e r ’ s g u i l t y p l e a

s e r v e d t o w a i v e a n y c l a i mh e m a y h a v e h a d t o a j u r i s d i c t i o n a l d e f

i c i e n c y. There fore , even if

one or more of the Petit i oner’ s crimes a ctually took place outside of

L awr ence-4-

County , the L awr ence County Circuit Court had jurisdiction to convict the De fendant upon his pleas of g uilty

. The Petitioner’s fifth contention is that the judgme nts of J anuary 4, 2000, and Oc tober 15, 20 02 , o rd e ri ng re sti tut ion , are vo id be c a us e the y do no t state a sp e c if ic a mou nt t o b e pa id. Ev e n if the a mou nt o f r e sti tut ionow e d is no t di sc e rn able fr om the record, th is arg ume nt i s n ot p ro pe rl y befor e the Court. Tenne ssee Code Annotated section 29-21-101 (2000) pr ovides that “[a]nyperson imprisoned or re strained of liberty , under any

prete nse whatsoever, . . . may prosecu t e a w rit of habea s co rpus . . . .” The Tenne ssee Supre me Court has held that “ a per son is not ‘restraine d of lib e rt y ’ fo r p ur

po se s o f the ha

be a s c or pu s st a tut e un le ss the c ha lle ng e d ju dg me nt i tse lf imp os e s a restraint upon the petitioner’s fr eedom of action or move ment.” Hickman v. State, 153 S.W .3d 16, 23 (T e nn
. 20 04 ). I n Hi c kman, the c ou rt e xpla ine d that “ wh e n th e re str a int on a pe tit ion e r’ s li be rt y is m e re ly a c oll a te ra l c on se qu e nc e of the c ha lle ng e d ju dg me nt, ha be a s c or pu s is no t a n a

pp ro pria te avenue for se eking relief .” I d. Be cause , in t h i s ca s e, the Petitioner’s cla ims reg ard mone tary restitution, and not a re straint of liberty , the Petitioner’s cla ims reg arding restitution are not prope r g rounds for habea s corpus relief. See Tenn. Code Ann. § 29-21- 101; Hickman, 153 S.W.3d at 23.

The Petitioner’s six th c laim is that the judgme nts of J anuary 4, 2000, J anuary 31, 2002, and O c to b e r 1 5 , 2 0 0 2 , ar e illeg al becau s e th e y r e f le c t s imu lt a n e o u s s e n te n c e s o f d if f e r e n t f o r ms
. We note that the judg ment fo rms for these offe nses do in fac t reve al that the boxes for “TD OC” and “Community Ba sed Alternative” wer e eac h marke d, howeve r, this alone is not enoug h to rende r the judgme nts void. A writ of habe as cor pus is available only

when it ap p ea rs from the fac e of the judgme nt or rec ord t hat either the convicting court was without jurisdiction to convict or se ntence the petitioner, or the petitioner’s sente nce ha s expi red. A rche r, 851 S. W

. 2 d at 164; Potts , 833 S.W .2d at 62. I n this case, the cleric al er ror is neither

a jurisdictional def

ect, nor is it evidence of an expired sentenc e, thus, we hold that the Petitioner is not entitled to relief on this iss ue. Finally , the Petitioner contends that his right to due pr ocess wa s violated when the L awr ence Countytrial court failed t o state t he amount of ja il and community corr ections cr edit to be applied to his amended re vocation orde r issued on F ebrua ry 2, 2004. Whil e the trial court’s order does not specify the amount of time t o be applied to the amended r evocation order, ha beas c orpus re lief is not available to a petitioner c laiming a defic iency

in the calc ulation of sentenc e cr edits. Michael K. Kenne dy v
. St a te , N o
. M 2 0 0 3

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- H C, 2 0 0 4 WL 2 5 9 9 4 9 0 , a t * 2 ( T e n n
. Crim

. A pp., at Nashville, Nov. 12, 2004) , no Tenn. R. App. P. 11 application filed ; Han cock v. State, N o. 01C01-9710-CR-00489, 1998 WL 453682, at *1 (Tenn. Crim. App., at Nashville, J uly 30, 1998), perm. to appeal denied (Tenn. Fe b. 16, 1999); see also, State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986). Even if the Petitioner’s claim of sentenc e re duction miscalculation had me rit, an ha be a s c or pu s pro c e e din g wo uld no t be ap pr op ri a te be c a us e “ c omp la int s r e g ard ing se nte nc e c re dit miscalculations that re late to release eligibility short of full service of t he sente nce do not wa rra nt habea s corpus re lief.” I d. Acc ording ly , the Petitioner is not entitled to relief on this issue.-5- III. Conclusi on
I n acc ordanc e with the for eg oing a uthorities and re as o ning, w e af firm the trial c ourt’s jud g me nt.

____________________________________ ROBERT W. WEDEMEYER, J UDGE