                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                November 13, 2000 On-Briefs

                    JERRY L. LUSTER v. ALAN BARGERY, et al

                A Direct Appeal from the Circuit Court for Hardeman County
                  No. 9196   The Honorable Jon Kerry Blackwood, Judge



                  No. W2000-00022-COA-R3-CV - Filed December 28, 2000


Prisoner filed petition for habeas corpus alleging that he received an amended sentence of six years
for drug violation instead of the original eight-year sentence with probation. Petitioner alleges that
upon revocation of probation, he was ordered to serve the eight-year sentence instead of the six-year
amended sentence. The trial court dismissed the petition, and petitioner has appealed.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Jerry Luster, Pro Se

Tom Anderson, Jackson, For Appellee Alan Bargery

                                              OPINION

        Jerry Luster, (“Petitioner”), filed a petition for habeas corpus alleging that he was arrested
and charged with the sale of a controlled substance (cocaine) and, subsequently, by a plea bargain
agreement on or about January 17, 1996, was sentenced to eight years in the Tennessee Department
of Correction (“TDOC”) for a Class B Felony, Range 1 Standard Offender at thirty percent. He
alleges that he filed two petitions for post-conviction relief alleging that the sentence and conviction
were illegal, after a lab report showing that the amount of drugs involved was less than .5 grams
constituting a Class C Felony instead of a Class B Felony. Petitioner further alleges that the State
had agreed to: set aside the original sentence; allow him to plead guilty to a six-year sentence for
a Class C Felony, Range 1, Standard Offender at thirty percent; suspend the sentence and place him
on six-year probation. Petitioner was released on probation on or about September 27, 1997, and
his probation officer advised him that he was on probation for a period of six years, less time served
of approximately 750 days.
        The petition further alleges that on or about June 4, 1998, the probation officer filed an
affidavit with the sentencing court concerning violations of Luster’s probation. Petitioner alleges
that his probation was revoked, and he was ordered to serve a sentence of eight years in the Coffee
County Jail. The petition alleges that a counselor at the Hardeman County Correctional Facility
informed him that he was serving an eight-year sentence instead of a six-year sentence. Petitioner
alleges constitutional violations, both under the United States Constitution and the Tennessee
Constitution, and seeks an order granting all relief to which he is entitled. Attached to the petition
as exhibits are copies of the various orders referred to above.

       On November 16, 1999, the trial court filed an order stating:

                      This cause came to be heard before the Honorable Jon Kerry
               Blackwood, Judge of the Circuit Court of Hardeman County,
               Tennessee, on the 10th day of November 1999, upon the Petition for
               Writ of Habeas Corpus filed by the petitioner in this cause and a
               review of the entire record.

                      And it appearing to the Court that the petition for Writ of
               Habeas Corpus fails to state a cause upon which relief can be granted
               and should be dismissed.

                     IT IS, THEREFORE, ORDERED, ADJUDGED AND
               DECREED BY THE COURT that the Petition for Writ of Habeas
               Corpus be, and is, hereby, dismissed.

Petitioner has appealed, and the only issue for review is whether the trial court erred in dismissing
the petition for writ of habeas corpus.

        A motion to dismiss for failure to state a claim upon which relief can be granted is the
equivalent of a demurrer under our former common law procedure; thus, it is a test of the sufficiency
of the leading pleading. Cornpropst v. Sloan, 528 S.W.2d 188, 190, 93 ALR3d 979 (Tenn. 1975);
Humphries v. Westend Terrace, Inc., 795 S.W.2d 128 (Tenn. Ct. App. 1990).

        The complaint and exhibits reveal that the Petitioner was originally sentenced for the offense
of sale of a controlled substance (cocaine) pursuant to T.C.A. § 39-17-417, as a Class B Felony,
standard thirty percent, Range 1, to eight years in TDOC. After filing a post-conviction relief
petition, an amended sentencing judgment was entered on September 25, 1997 for the offense of sale
of controlled substance (cocaine) less than .5 grams, a Class C Felony, Range 2 multiple offender
at 35 percent. Petitioner was sentenced to eight years in the county jail with probation for six years.
The probation order, entered September 30, 1997, specifically states that Petitioner was sentenced
to serve a term of eight years in the county jail, that the sentence was suspended, and that Petitioner
be placed on probation for a period of six years.



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         Under Article I, Sec. 15 of the Tennessee Constitution, a petitioner may contest a void or
illegal confinement at any time during the period of incarceration by bringing a petition for a writ
of habeas corpus. See Archer v. State, 851 S.W.2d 157 (Tenn. 1993). In Archer, the Court said:

                       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 convicting
               court was without jurisdiction or authority to sentence a defendant, or
               that a defendant’s sentence of imprisonment or other restraint has
               expired.

Id. at 164.

Thus, in Tennessee, the writ of habeas corpus is limited in scope and in relief. See State v. Richey,
20 S.W.3d 624 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998).

       A void or illegal judgment is one which is facially invalid, because the court rendering the
judgment lacked the proper statutory authority, whereas a voidable judgment is facially valid and
requires proof in addition to the record or judgment to show that it is voidable. See Dykes v.
Compton, 978 S.W. 2d 528, 529 (Tenn. 1998). In Passarella v. State, 891 S.W.2d 619 (Tenn. Crim.
App. 1994), the Court said:

                       A judgment of a court of general jurisdiction is presumed to
               be valid. This presumption is said to be conclusive unless the
               judgment is impeached by the record. If the court rendering a
               judgment has jurisdiction of the person, the subject-matter, and has
               the authority to make the challenged judgment, the judgment is
               voidable, not void; and the judgment may not be collaterally attacked
               in a suit for habeas corpus relief.

Id. at 627.

        An evidentiary hearing is not required for every petition for writ of habeas corpus. Unless
the allegations of the petition establish the void character of the judgment, the evidentiary hearing
is not warranted. See Russell v. Willis, 222 Tenn. 491, 437 S.W.2d 419 (1969); State ex. rel Byrd
v. Bomar, 214 Tenn. 476, 381 S.W.2d 280 (1964).

         In the case at bar, it does not appear on the face of the record that the convicting court was
without jurisdiction to enter the judgment, nor does it appear on the face of the record that
Petitioner’s sentence of imprisonment has expired. Accordingly, the order of the trial court
dismissing the petition is affirmed, and the case is remanded for such further proceedings as may be
necessary. Costs of the appeal are assessed to Petitioner, Jerry L. Luster, for which execution may
issue, if necessary.


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    __________________________________________
    W. FRANK CRAWFORD, PRESIDING JUDGE, W.S

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