        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 25, 2012

              CHARLES MONTAGUE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Washington County
                          No. 37428 Lynn W. Brown, Judge


               No. E2012-00147-CCA-R3-HC - Filed September 25, 2012


The Petitioner, Charles Montague, appeals from the Washington County Circuit Court’s
summary dismissal of his petition for a writ of habeas corpus. In this appeal, the Petitioner
claims entitlement to habeas corpus relief because (1) he was deprived of pretrial jail credits;
(2) his sentence is disproportionate to other sentences from the trial court; (3) an illegal fine
was imposed; (4) he was ordered to serve his sentence in “installments”; and (5) the
indictment was improperly amended without his consent. We conclude that the Petitioner
has stated a cognizable claim for habeas corpus relief with regard to his possible entitlement
to pretrial jail credits. We remand for a hearing and the appointment of counsel on that issue
alone. In all other respects, the judgment of the habeas corpus court is affirmed.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                Affirmed in Part; Reversed in Part; Case Remanded

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which JERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Charles Montague, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Senior Counsel,
for the appellee, State of Tennessee.

                                      OPINION
                                FACTUAL BACKGROUND

       The Petitioner is extremely litigious, this being his third petition for a writ of habeas
corpus. He has also previously filed a petition for post-conviction relief and multiple suits
against a former attorney, the Johnson City Chief of Police, Washington County, and the
Department of Correction. This court has previously set out the following factual and
procedural history of the Petitioner’s case:

          The record reflects that the Petitioner was convicted of possession of cocaine
          for resale, possession of marijuana, and possession of drug paraphernalia after
          a 1990 jury trial in the [Washington County Circuit Court]. However, this
          court reversed the convictions on appeal and remanded the cases for retrial.
          State v. Charles Montague, 03C01-9105-CR-134, 1991 WL 236724 (Tenn.
          Crim. App. Nov. 15, 1991). During the pendency of the retrial for the drug
          offenses, the Petitioner was convicted of first degree murder and sentenced to
          life imprisonment; this court affirmed the conviction and sentence on appeal.
          State v. Charles Montague, No. 03C01-9306-CR-00192, 1994 WL 652186
          (Tenn. Crim. App. Nov. 21, 1994), perm. app. denied, (Tenn. Apr. 10, 1995).
          Upon retrial in 1993 for the drug offenses, the [Petitioner] was once again
          convicted of possession of cocaine for resale, possession of marijuana, and
          possession of drug paraphernalia. The trial court sentenced the [Petitioner] to
          six years for the cocaine offense and eleven months and twenty-nine days for
          the misdemeanor offenses. The trial court further ordered all sentences to be
          served consecutively to one another and consecutively to the life sentence
          previously imposed for the first degree murder conviction. This court affirmed
          the judgments of the trial court in the drug cases. State v. Charles Montague,
          03C01-9406-CR-00233, 1995 WL 509426 (Tenn. Crim. App. Aug. 29, 1995),
          perm. app. denied, (Tenn. Dec. 28, 1995). The Petitioner unsuccessfully
          sought post-conviction relief from the drug convictions, the denial of which
          w as affirmed by this court. C harles M ontague v. S tate,
          E2003-01330-CCA-R3-PC, 2001 WL 1011464 (Tenn. Crim. App. Sept. 4,
          2001).

Charles Montague v. Howard Carlton, Warden, No. E2007-02823-CCA-R3-HC, 2008 Tenn.
Crim. App. LEXIS 777, at *2-3 (Tenn. Crim. App. Sept. 11, 2008), perm. app. denied,
(Tenn. 17, 2009).1

        The Petitioner filed his first petition for a writ of habeas corpus in February 2002
challenging the drug convictions, alleging that the convictions were based upon insufficient
evidence and that a fatal variance existed between the proof and the indictment. Id. at *3.
Additionally, the Petitioner alleged that his six-year sentence for possession of cocaine for
resale and sentences of eleven months and twenty-nine days for possession of marijuana and
drug paraphernalia had expired. Id. The State filed a motion to dismiss the petition because

1
    Only the Lexis citation is currently available.

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the challenged sentences were imposed consecutively to the previously imposed sentence of
life imprisonment; therefore, the Petitioner had not begun to serve the sentences and could
not allege that they had expired. Id. at *3-4. The habeas corpus court agreed and summarily
dismissed the petition. Id. at *4.

      On appeal to this court, the Petitioner argued that the judgments for the drug cases
were void on their face because:

       (1) they do not include pretrial jail credits to which he is entitled[;] (2) the
       sentences have expired[;] (3) there was a fatal variance between the indictment
       and the proof at trial rendering the evidence sufficient to support the
       convictions[;] and (4) the sentences were imposed in contravention of Blakely
       v. Washington, 542 U.S 296 (2004).”

Id. at *5. Upon this court’s review, the panel affirmed the summary dismissal of the
Petitioner’s habeas corpus claims concluding that, even though the habeas corpus court was
incorrect as to the expiration of the sentences, the Petitioner’s allegations lacked any merit
warranting habeas corpus relief. Id. at *5-7. Specifically, this court found that the
Petitioner’s complaints that he had not received pretrial credits, of variances in the indictment
and the proof, and that the sentences had expired lacked merit. Id.

        The Petitioner then filed his second petition for habeas corpus relief on April 8, 2010.
See Charles Montague v. Cherry Lindamood, Warden, No. M2010-01653-CCA-R3-HC,
2010 WL 4890270, at *2 (Tenn. Crim. App. Dec. 1, 2010). In the April 8, 2010 petition, the
Petitioner asserted that his judgments were void because: “(1) they do not include pretrial jail
credits[;] (2) the sentences have expired[;] (3) there are fatal variances in the indictment[;]
and (4) the trial court imposed a fine in excess of the statutory maximum.” Id. On May 28,
2010, the habeas corpus court dismissed the petition for failure to state a claim upon which
relief could be granted. Id.

        The Petitioner appealed. This court affirmed, concluding that the Petitioner had failed
to set forth any allegations that the trial court lacked jurisdiction to convict or sentence him
or that he was unlawfully restrained for a sentence that had expired. Id. at *3. The panel
reasoned that the Petitioner’s first three claims had been previously determined in this court’s
response to the Petitioner’s prior petition for habeas corpus relief. Id. at *2. As for his final
claim of an illegal fine, this court held that such a claim was not proper in a petition for a writ
of habeas corpus. Id.

       On November 7, 2011, the Petitioner, incarcerated in Johnson County, filed the instant
petition for a common law writ of certiorari or a writ of habeas corpus in the Washington

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County Circuit Court. The Petitioner asserted that he filed his petition in Washington County
because “the much needed records are with [that] court’s files and/or custody.” Before
delineating his specific claims, the Petitioner noted that “[s]ome of the issues had been raised
in prior proceedings but a true adjudication has not been rendered do [sic] to technical
reasons.” He then raised the following grounds for relief, arguing that the trial court acted
illegally or without jurisdiction in the following instances: (1) by failing to grant him certain
pretrial jail credits; (2) by imposing grossly disproportionate misdemeanor sentences as
compared to other sentences in the same court; (3) by imposing a fine in excess of the
statutory maximum; (4) by ordering that his six-year sentence “be done in installments”; and
(5) by amending the indictment without his consent and after the jury was sworn.

       The State filed a motion to dismiss the petition. The State responded to the
Petitioner’s allegations, arguing that the Petitioner had not proven that his judgments were
void or that his sentences had expired. Specifically, the State contended that the Petitioner’s
various sentencing issues were not proper for habeas corpus relief because such “relief on
sentencing issues is limited to ‘fatal errors’ and not issues that are generally characterized as
‘appealable errors.’” The State, noting that the only issue “that might be cognizable in a
habeas corpus petition” was the Petitioner’s claim that he was deprived of pretrial jail credits,
submitted that the Petitioner had failed to attach any documentation in support of his claim.

      On December 14, 2011, the court entered an order granting the State’s motion and
dismissing the petition. This appeal followed.

                                         ANALYSIS

        On appeal, the Petitioner argues that he is entitled to a relief via the common law writ
of certiorari or a writ of habeas corpus. We make out five basic allegations by the Petitioner:
(1) he was denied pretrial jail credits; (2) his misdemeanor sentences are disproportionate to
other sentences out of that same court; (3) the fine imposed is in excess of the statutory
maximum; (4) his six-year sentence was improperly ordered “to be served in installments”;
and (5) the indictment was amended without his consent and after the jury was sworn in
violation of double jeopardy. He contends that he filed his petition in Washington County
“because the records are more readily available” in the county of conviction and that he did
“not have copies of the records that are within the Washington County Sheriff’s Office.” The
State essentially repeats the arguments made in its motion to dismiss, submitting that habeas
corpus relief on sentencing issues is limited to “fatal errors” and not issues that are generally
characterized as “appealable errors,” and that the Petitioner did not attach sufficient
documentation to support his claim that he was denied pretrial jail credits. The Petitioner
filed a reply brief, contending that an illegal fine can be address via a writ of certiorari and
that improper amendment to the indictment is a cognizable habeas corpus issue.

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        In the proceedings below, the court considered the petition as one seeking habeas
corpus relief. The determination of whether to grant habeas corpus relief is a question of law
and our review is de novo. Summers v. State, 212 S.W.3d 251, 262 (Tenn. 2007). The
Tennessee Constitution guarantees a convicted criminal defendant the right to seek habeas
corpus relief. Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus
relief will be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). In
this state, habeas corpus relief only addresses detentions that result from void judgments or
expired sentences. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A judgment is void
“only when ‘[i]t appears upon the face of the judgment or the record of the proceedings upon
which the judgment is rendered’ that a convicting court was without jurisdiction or authority
to sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Hickman v. State, 153 S.W.3d 15, 20 (Tenn. 2004) (quoting State v. Ritchie, 20
S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). On the other hand, a voidable judgment
or sentence is one which is facially valid and which requires evidence beyond the face of the
judgment or the record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at
83. A petitioner bears the burden of establishing a void judgment or illegal confinement by
a preponderance of the evidence. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).
Moreover, it is permissible for a court to summarily dismiss a habeas corpus petition, without
the appointment of counsel and without an evidentiary hearing, if there is nothing on the face
of the record or judgment to indicate that the convictions or sentences addressed therein are
void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

        Procedurally, we note that the failure to file a petition for a writ of habeas corpus in
the county of incarceration, absent a sufficient reason for not doing so, is a proper basis for
the dismissal of the petition. See Tenn. Code Ann. § 29-21-105. “However, if a petition
does state a reason explaining why it was filed in a court other than the one nearest the
petitioner, the petition may be dismissed pursuant to this section only if the stated reason is
insufficient.” Davis v. State, 261 S.W.3d 16, 21 (Tenn. Crim. App. 2008). In Davis, the
court concluded that “the fact that the convicting court possesses relevant records and retains
the authority to correct an illegal sentence at anytime is a sufficient reason under Tennessee
Code Annotated section 29-21-105 for the petitioner to file in the convicting court rather than
the court closest in point of distance.” Id. at 22. Here, the Petitioner asserted that the
Washington County Circuit Court was the convicting court, that he was unable to access all
of his records, and that the convicting court had all of the necessary records pertaining to the
challenged convictions. Accordingly, we conclude that the Petitioner provided a sufficient
reason to file his documents in the convicting court, as opposed to the court in the county of
his incarceration. See, e.g., James Hall v. State, No. M2009-00652-CCA-R3-HC, 2010 WL
4323024, at *2 (Tenn. Crim. App. Oct. 29, 2010).




                                              -5-
        Next, we will address the Petitioner’s contention that his sentence is illegal because
the trial court failed to grant him pretrial jail credits. An illegal sentence may be grounds for
habeas corpus relief. See Cantrell v. Easterling, 346 S.W.3d 445, 453 (Tenn. 2011) (citing
Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005)). “An illegal sentence is one which is
‘in direct contravention of the express provisions of [an applicable statute], and consequently
[is] a nullity,’” or one which is “not authorized under the applicable statutory scheme.” Id.
at 452 (citations omitted).

        The State concedes that this court has determined this type of claim to be cognizable
in a habeas corpus proceeding. See Tucker v. Morrow, 335 S.W.3d 116, 123 (Tenn. Crim.
App. 2009). The award of pretrial jail credit lies strictly within the purview of the trial court
rather than the Department of Correction. Id. at 122. The trial court is statutorily required
to credit a petitioner with all time spent in confinement pending arraignment and trial on the
offense or offenses that led to the challenged convictions. Id. at 123. The failure of the trial
court to credit a petitioner with the credits mandated under section 40-23-101(c) contravenes
the requirements of that statute and results, therefore, in an illegal sentence, an historically
cognizable claim for habeas corpus relief. Id.

       To establish the substance of this type of a claim and bring the claim within the ambit
of habeas corpus review, a petitioner must show (1) that he was incarcerated “pending
arraignment and trial” on the offense or offenses that led to the challenged convictions or
“subsequent to” the challenged conviction or convictions and (2) that the trial court failed
to award credit for the incarceration on the challenged judgment. Tucker, 335 S.W.3d at 122.
Although noting a viable habeas claim, the State goes on to argue that “it is unclear from the
petition and its attachments precisely what credit that the [P]etitioner claims were deprived
from him” and, thus, the Petitioner is not entitled to relief. However, contrary to the State’s
assertion, the Petitioner sets forth the following allegation of an illegal sentence by
deprivation of pretrial jail credits in his petition:

       issuing the two misdemeanor sentences of 11 months and 29 days, on Sept. 21,
       1993, without granting [P]etitioner-Montague, his previously served
       incarcerated jail time from Sept. 27, 1991 to Nov. 22, 1991=57 days, in the
       Washington [C]ounty Jail, and the [M]ountain City Jail, plus the good and
       honor time credits; and the credits from Nov. 23, 1991 to May 5, 1992=165
       days on ‘O.R.-BOND.’

He further avers that his judgments for the two misdemeanor sentences “do not reflect any
credits for time in jail and on the streets[.]” Moreover, we observe that the judgment forms
for Counts 2 (possession of marijuana) and 3 (possession of drug paraphernalia), both
attached to the petition, do not reflect any award of pretrial jail credit.

                                               -6-
         Additionally, we note that following summary dismissal of the petition, the Petitioner
attempted to supplement the record in this court with a one-page document from the
Washington County Detention Center reflecting his pretrial jail credits. The document
reflects that, in Counts 2 and 3 of Case Number 18075, the Petitioner had served from
September 27, 1991, to December 9, 1997, a total of 73 days, in the Washington County
Detention Center. The document is signed by the timekeeper of Washington County
Sheriff’s Office. We denied supplementation of the record because there was “no indication
in the record that the habeas corpus court considered or relied upon said document in denying
relief.”

         The court below did not provide any reasoning for its summary dismissal of the
petition. Thus, we do not know if the court dismissed the petition because the Petitioner had
failed to attach sufficient documentation to support his claim for pretrial jail credits. Our
supreme court has made it clear that to sustain a successful habeas corpus challenge via an
illegal sentence claim, a petitioner must attach sufficient documentation establishing the
illegality to his petition for writ of habeas corpus. Summers v. State, 212 S.W.3d 251, 261
(Tenn. 2007) (“In the case of an illegal sentence claim based on facts not apparent from the
face of the judgment, an adequate record for summary review must include pertinent
documents to support those factual assertions.”). However, it would be incongruous for this
court to hold that the Petitioner had stated a sufficient reason to file his documents in the
convicting court to permit access to the necessary records, but affirm summary dismissal of
said petition for failure to attach the appropriate documentation which he averred he was
unable to access fully. Because this type of claim is cognizable in a habeas corpus
proceeding, and because the Petitioner provided a sufficient reason for filing in the county
of his conviction, summary dismissal of the pretrial jail credit claim was improper. An
evidentiary hearing is required. This issue is remanded to the habeas corpus court for a
determination how many, if any, credits to apply to the Petitioner’s sentences on all counts 2
and to amend the judgments as appropriate. See Grimes, 2008 WL 141129, at *4.

      Regarding the Petitioner’s claim of an illegal fine, this issue has already been
determined to be without merit in the context of a writ of habeas corpus. On appeal from
dismissal of his second petition for habeas corpus relief, this court determined that such a
claim was not proper in a petition for a writ of habeas corpus, reasoning as follows:

2
  Also, in his petition, the Petitioner infers a possible claim for pretrial jail credits on his six-year sentence.
He argues that service of six-year sentence was ordered “in installments.” As discussed infra, manner of
service of this sentence is not cognizable in this proceeding. However, the Petitioner further references that
he began serving time on this six-year sentence before this court’s reversal of that conviction and, thereafter,
was not awarded pretrial jail credits when the sentence was re-imposed. The judgment form for Count 1
(possession of cocaine for resale) does not reflect any award of pretrial jail credit. On remand, the court
should also address any possible claim for pretrial jail credit on this sentence.

                                                       -7-
       The [Petitioner’s] final claim is that the trial court imposed an illegal fine. The
       writ of habeas corpus is available to any person who is illegally “imprisoned
       or restrained of liberty.” Tenn. Code Ann. § 29-21-101. “The assessment of
       a fine upon a defendant does not constitute imprisonment or restraint within
       the meaning of those terms. Moreover, the issue of a fine has no application
       to the question of whether the trial court was without jurisdiction to sentence
       the defendant or that the defendant’s sentence has expired.” Burrell v. Carlton,
       No. E2004-01700-CCA-R3-HC, 2005 WL 544732, at *2 (Tenn. Crim. App.
       March 8, 2005), perm. app. denied, (Tenn. June 20, 2005).

Montague, 2010 WL 4890270, at *2. The Petitioner seemingly does not dispute this
determination but instead argues that he is entitled to a writ of certiorari.

       Tennessee Code Annotated section 27-8-101 codified the common law writ of
certiorari. The statute provides as follows:

       The writ of certiorari may be granted whenever authorized by law, and also in
       all cases where an inferior tribunal, board, or officer exercising judicial
       functions has exceeded the jurisdiction conferred, or is acting illegally, when,
       in the judgment of the court, there is no other plain, speedy, or adequate
       remedy. This section does not apply to actions governed by the Tennessee
       Rules of Appellate Procedure.

Generally, the writ of certiorari is limited in application and may not ordinarily be used “to
inquire into the correctness of a judgment issued by a court with jurisdiction.” State v. Adler,
92 S.W.3d 397, 401 (Tenn. 2002) (citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn.
1978)). The writ properly applies when the action of the trial court is without legal authority
and where no other “plain, speedy or adequate remedy” is available. Moody v. State, 160
S.W.3d 512, 515 (Tenn. 2005) (citing Adler, 92 S.W.3d at 401; Tenn. Code Ann. § 27-8-101
(2000)).

       The Petitioner argues that his fine of $15,000 was in excess of the statutory maximum
for a Class C felony and, thus, is not authorized by law. The Petitioner was sentenced as a
Range I, standard offender for his possession of cocaine for resale conviction. A Class C
felony had a range of punishment of three to six years and carried a possible fine “not to
exceed ten thousand dollars ($10,000), unless otherwise provided by statute[.]” Tenn. Code
Ann. § 40-35-111 (1989) (emphasis added). However, Tennessee Code Annotated section
39-17-417, the statute under which the Petitioner was convicted, authorized a fine of “not
more than one hundred thousand dollars ($100,000)[.]” See Tenn. Code Ann. § 39-17-417(c)



                                               -8-
(1989). The Petitioner’s fine is not contrary to law, and a writ of certiorari does not apply
in this case for review of the trial court’s action.

       The Petitioner also challenges the validity of the indictment against him, arguing that
the indictment was amended without his consent and after the jury was sworn in violation of
double jeopardy. Specifically, he contends that in Count 2 (possession of marijuana), “[t]he
prosecutor and/or the judge removed the word ‘feloniously,’ that was a part of the
indictment, but not apart of the formal reading or the jury charge.”

        A valid indictment is essential to prosecution and may be subject to attack at any time
if the content does not charge an offense or does not confer jurisdiction. Dykes v. Compton,
978 S.W.2d 528, 529 (Tenn. 1998). The functions of the indictment are to provide notice of
the charge, enable entry of a proper judgment upon conviction, and protect against double
jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) (citing State v. Pearce, 7 Tenn.
(Peck) 65, 67 (1823); State v. Haynes, 720 S.W.2d 76, 82 (Tenn. Crim. App. 1986)).

        Article I, section 14 of the Tennessee Constitution provides that “no person shall be
put to answer any criminal charge but by presentment, indictment or impeachment.” Tenn.
Const. art. I, § 14. Article I, section 9 of the Tennessee Constitution guarantees that “in all
criminal prosecutions, the accused [has] the right . . . to demand the nature and cause of the
accusation against him, and have a copy thereof.” Tenn. Const. art. I, § 9. Regarding the
necessary content of an indictment, Tennessee Code Annotated section 40-13-202 provides
as follows:

              The indictment must state the facts constituting the offense in ordinary
       and concise language, without prolixity or repetition, in such a manner as to
       enable a person of common understanding to know what is intended, and with
       that degree of certainty which will enable the court, on conviction, to
       pronounce the proper judgment . . . .

Tenn. Code Ann. § 40-13-202.

          The Petitioner attached a copy of the indictment to his petition. Count 2 of the
Petitioner’s indictment provided that the Petitioner “on or about the 4th day of August, 1989,
. . . did unlawfully, feloniously, knowingly and intentionally have in his possession and under
his control approximately three (3) cigarette butts containing Marijuana . . . . ” The jury was
charged with simple possession of marijuana, a misdemeanor offense. Deletion of the word
feloniously did not result in the charge of a new or different offense. See State v. Jody Glen
Loy, No. E2006-02206-CCA-R3-CD, 2008 WL 2229259, at *7-8 (Tenn. Crim. App. May
30, 2008) (defendant’s argument “that the State, upon reading the language of Count 2 to the

                                              -9-
jury, amended the indictment by intentionally deleting the word ‘feloniously,’ as contained
in the indictment,” was without merit). The Petitioner was apprised of the nature of the
charge against him. The court of conviction had sufficient information to enter a proper
judgment.     See Ronald Eugene Gilmore v. Kenneth Locke, Warden, No.
M2005-01235-CCA-R3-HC, 2006 WL 1097493, at *3 (Tenn. Crim. App. Mar. 30, 2006).

         The Petitioner also argues that his misdemeanor sentences are disproportionate to
other sentences out of that same court and that his six-year sentence was improperly ordered
“to be served in installments.” Only sentences containing “fatal errors,” and which are
therefore illegal, may be addressed through the collateral proceeding of habeas corpus. See
Cantrell v. Easterling, 346 S.W.3d 445, 449-53 (Tenn. 2011). Examples of illegal sentences
for which habeas corpus relief is permissible include “(1) a sentence imposed pursuant to an
inapplicable statutory scheme; (2) a sentence designating a [release eligibility date] where
. . . prohibited by statute; (3) a sentence ordered to be served concurrently where statutorily
required to be served consecutively; and (4) a sentence not authorized for the offense by any
statute.” Id. at 452 (citing Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010)). These final
two errors of which the Petitioner claims are “appealable errors,” dealing with length and
manner of service of the sentence, and cannot be classified as “fatal errors.” See id. at 449-
53. The Petitioner is not entitled review of these issues via a writ of habeas corpus.
Moreover, review would likewise be improper via a writ of certiorari.

                                       CONCLUSION

        In accordance with the foregoing, the judgment of the habeas corpus court summarily
dismissing the Petitioner’s claim for pretrial jail credits is reversed. This case is remanded
solely for an evidentiary hearing on the merits of that issue. In all other respects, the order
of summary dismissal is affirmed.




                                                    ________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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