       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         DECEMB ER SESSION, 1997       January 21, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STEVE CARROLL,                     )    C.C.A. NO. 03C01-9611-CR-00420
                                   )
           Appe llant,             )
                                   )    JOHNSON COUNTY
                                   )
V.                                 )
                                   )    HON. LYNN BROWN, JUDGE
HOWARD CARLTON, WARDEN,            )
                                   )
           Appellee.               )    (HABEAS C ORPU S)




FOR THE APPELLANT:                 FOR THE APPELLEE:

STEV E CAR ROL L, pro se           JOHN KNOX WALKUP
N.E.C.C. #256046                   Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683            ELIZABETH T. RYAN
                                   Assistant Attorney General
                                   2nd Floor, Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   DAVID CROCKETT
                                   District Attorney General
                                   Route 19, Box 99
                                   Johnson City, TN 37601




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petition er, Ste ve Ca rroll, app eals a s of righ t the trial c ourt’s dismissal

of his petition for writ of habeas corpus. Petitioner argues four issues in this pro

se appeal: (1) the indictments were defective in that they were not properly

signed by the District Attorney; (2) the trial court erred in dismissing the petition

before the State’s response was filed; (3) the trial court erred in allowing different

classes of offenses to be included in the same indictment; and (4) the trial court

violated Tenn. Code Ann. § 29-21-108 in failing to grant the writ. We affirm the

judgm ent of the tria l court.



       On June 2 1, 1995 , the Petitioner was indicted b y the Ca mpbe ll County

Grand Jury for one count of aggravated rape, two counts of aggravated sexual

battery, three counts of aggravated child abuse, one count of rape of a child, one

count of incest, an d two co unts of aggravated assault. Upon pleas of guilty, the

Petitioner was convicted of two counts of aggravated child abuse and sentenced

to ten yea rs in prison .



       On Octo ber 23 , 1996 , the Pe titioner file d a pe tition for writ of habeas

corpus relief in th e Joh nson Coun ty Crim inal Co urt.           He alleged that his

convictions were void because the indictment did not contain th e requisite

signature of the district attorney. Before the State filed a respon se, the trial court

dismissed the petition on O ctober 29, 199 6. The trial court concluded that the

petition failed to state a claim u pon wh ich relief cou ld be gra nted. After the

Petitioner appealed the dismissal of his petition to this Court, the State filed a




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motion to remand to the trial court for consideration of the issue raised by the

Petitioner in his petition, which motion was granted on January 28, 1997. The

trial court subsequently entered an order on March 25, 1997, dismissing the

petition because a “defe ct in an indictm ent is a matter which must be addressed

in the trial court and on dire ct app eal or b y petition for pos t-conv iction w rit [sic] in

the trial court. It is not grounds for hab eas corpu s. Such doe s not remo ve

jurisdiction from any crim inal court of this [S]tate.” The Petitioner now b rings th is

appea l of the trial cou rt’s dismiss al of his pe tition for hab eas co rpus relief.



       It is a well-established principle of law that the remedy of habeas corpus

is limited in its na ture and its scope . Archer v. State, 851 S.W.2d 157, 161-62

(Tenn. 1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App . 1994).

In Tennessee, habeas corpus relief is available only if “‘it appears upon the face

of the judgme nt or the record of the p rocee dings upon which the jud gme nt is

rendered’ that a convicting court was without jurisdiction or authority to sentence

a defendan t, or that a defenda nt’s sentence o f imprisonm ent or other restraint

has expired.” Archer, 851 S.W.2d at 164 (citation omitted in original). The

petitioner has the burden of establishing either a void judgment or an illegal

confinement by a prep ondera nce of the evidenc e. Pass arella, 891 S.W.2d at

627. Moreover, where a judgment is not void, but is merely voidable, such

judgment may not be collaterally attacked in a suit for habeas corpus relief. Id.




                           I. Alleged D efective Ind ictmen ts




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       Petitioner first argues that his convictions are void because each count of

the indictment was not signed by the District Attorney General. Tennessee Code

Annotated section 40-13-103 requires a district attorney to sign the charging

document before it is sent to the grand jury. Our supreme court has also stated

that no indictm ent sho uld be se nt to the grand jury “without the sanction and

approbation of the s olicitor-g enera l, prove d by his signature on some part of the

bill.” Fout v. State, 4 Tenn. (3 H ayw.) 98, 99 (1816 ) (emp hasis adde d). Cle arly

a signature is required, but one is not necessarily required to be on each count

of an indictment. In State v. Lo ckett, our supreme court explained, “It is not

essential that the sig nature o f the officer sh ould be placed a t the end of the

indictme nt. It is sufficie nt if it appear on some other part of the paper, provided

it appear beyond doubt that the attestation relates to the ind ictment and every

part thereof, an d identifies th e sam e as the a ct and ac cusation of the

governm ent, done through its sworn officer.” 50 Tenn . (3 Heisk.) 274-7 5 (1871).

The court a lso sta ted tha t it is not “a bsolu tely nec essa ry that th e sign ature s hould

be at the c onclu sion o f the bill; b ut it mu st be o n it, and mus t show that it is

intended to co ver all the counts co ntained therein.” Id. at 275.



       The District Attorney General in the instant case signed the second page

of a two-page indictment. The counts in the in dictm ent we re con secu tively

numbered, starting on page one and continuing through page two. It can be

logica lly reasoned that his signature was plainly intend ed to cov er all the co unts

contained in the two-page indictment. We find no merit in this issue.

                   II. Alleged Error in Dismissing Petition Before
                                State Filed Response




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       The trial court dismissed the Petitioner’s petition for habeas corpus relief

before the State’s response was filed beca use P etitione r had n ot sho wn tha t his

conviction was void or that his term of imprisonment had expired. In Pass arella,

this Co urt held that if it is clear from the face of the p etition th at the p etitione r is

not entitled to relief, then the trial court is not required to hold a hearing or inquire

into the allegations in the petition, but may dismiss the petition summarily. 891

S.W.2d at 627. Petitioner’s allegations in the instan t case , if merito rious, w ould

render his conviction voidable rather than void, thus making the issues

inappro priate for habeas corpus relief. Therefore, the trial court had the authority

to sum marily dism iss the pe tition. This iss ue is witho ut merit.



                   III. Alleged Error in Allowing Different Classes
                            of Offenses in Same Indictment


       Petitioner argues that the C ampb ell Coun ty Criminal Court erred in placing

different classe s of offe nses in the sa me in dictm ent. T his Co urt finds that this

issue is not appropriate for habeas corpus review because even if the issue had

merit, the conviction would not be void but merely vo idable. See Pass arella, 891

S.W .2d at 627 .



       Rule 14 of the Tennessee Rules of Criminal Procedure provides for

severance of offenses in appropriate cases. It provides that a defendant’s motion

for severance of offenses must be made before trial unless it is based on a

ground not known prior to trial. In this case, Petitioner pled guilty to two of the

offenses in the indictm ent. Not o nly is the issu e waived by failure to file a motion

for severance prior to the guilty plea, we see absolutely no prejudice to Defendant

if conso lidation of the offenses in one indictment was improper due to the fact

                                             -5-
that Petitioner p led guilty to on ly two of the m ultiple offens es in the in dictme nt.

This issu e is withou t merit.



                       IV. Alleged Failure of Trial Court in Refusing
                              to Entertain Petitioner’s Petition


       In his final issue, Petitioner alleges again that his conviction was void, and

that it was therefore unconstitutional for the trial court to not entertain his petition.

He also argues that the trial court’s dismissal of his petition was arbitrary, callous

and mad e with d elibera te indiffe rence as to h is rights . In sup port of h is argument

that it was unconstitutional, Petitioner cites Rule 58 of the Tennessee Rules of

Civil Procedure. How ever, this rule applies to proper e ntry of judgm ents with

notice given to the parties. Therefore, this rule is inapplicable to the issues and

case a t bar.



       Regarding Petitioner’s argument that his conviction is void, this issue has

been reviewed above and decided against the Petitioner. Furthermore, we do not

find the actions of the trial court to be arbitrary or “callous.” The trial court was

justified in dismissing Petitioner’s petition, as his conviction was not void an d his

senten ce had not expire d. This iss ue is witho ut merit.



       Finding no merit in the issues raised by Petitioner, we affirm the judgment

of the trial cou rt.



                                      ____________________________________
                                      THOMAS T. W OODALL, Judge




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CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
DAVID G. HAYES, Judge




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