           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          SEPTEMBER 1997 SESSION       October 30, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

CARL HYSON, JR.,                   )
                                   )    C.C.A. NO. 03C01-9611-CR-00393
           Appellant,              )
                                   )    JOHNSON COUNTY
VS.                                )
                                   )    HON. LYNN W. BROWN,
HOWARD CARLTON and                 )    JUDGE
STATE OF TENNESSEE                 )
                                   )
           Appellees.              )    (Habeas corpus)



FOR THE APPELLANT:                     FOR THE APPELLEES:


CARL HYSON, JR., pro se                JOHN KNOX WALKUP
# 236076 NECC                          Attorney General & Reporter
POB 5000
Mountain City, TN 37683                MICHAEL J. FAHEY, II
                                       Asst. Attorney General
                                       450 James Robertson Pkwy.
                                       Nashville, TN 37243-0493

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




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                       OPINION



              The petitioner filed his petition for writ of habeas corpus on August 8, 1996,

alleging that his 1994 convictions for aggravated sexual battery must be set aside

pursuant to this Court’s opinion in State v. Roger Dale Hill, Sr., No. 01C01-9508-CC-

00267, Wayne County (Tenn. Crim. App. filed June 20, 1996, at Nashville). Specifically,

he claims that the indictment charging him with multiple counts of aggravated rape fails

to allege an essential element of the crimes and his convictions must therefore be set

aside. The court below summarily denied the petition on the grounds that it failed to state

a basis for relief. The petitioner appeals. We affirm the judgment below.



              The charges against the petitioner provide that he “did unlawfully and

feloniously have sexual penetration with [the victim], . . . a child under the age of thirteen

years, contrary to TCA, Section 39-13-502.” In Hill, the indictment alleged merely that the

defendant had “unlawfully sexually penetrate[d] [the victim] a person less than thirteen

(13) years of age.” This Court found that the use of the word “unlawfully” was not

sufficient to allege the defendant’s mens rea, an essential element of the offense.

Accordingly, the indictment was found fatally defective.



              The indictment in the petitioner’s case is significantly different. In addition

to alleging that the crimes were committed “unlawfully,” the indictment provides that the

petitioner committed the offenses “feloniously.” As pointed out by the State, Judge Tipton

of this Court has previously considered allegations similar to those of the petitioner’s in

which the defendant had been charged with “unlawfully and feloniously sexually

penetrat[ing] [the victim] by use of force or coercion.” See Charles Gates v. State, No.

03C01-9510-CC-00313, Bradley County (Tenn. Crim. App. Order filed Aug. 16, 1996, at



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Knoxville). In that case, Judge Tipton ruled as follows:

                  Historically, the word <feloniously’ has meant <[p]roceeding
                  from an evil heart or purpose; done with a deliberate intention
                  of committing a crime.’ As our supreme court has previously
                  noted, <one meaning attached to the word is: “In a legal
                  sense, done with the intent to commit a crime.” ’ Certainly,
                  these mental states that are necessarily inherent in the word
                  <feloniously,’ as recognized in Tennessee for the better part
                  of this century, would include a reckless mens rea, as such
                  exists in the present law.

                  An indictment is no less valid for failing to allege the offense
                  in the words of the statute if it alleges the equivalent to those
                  terms. Thus, the indictment, in charging aggravated rape,
                  was and is jurisdictionally sufficient to support the entry of a
                  judgment of conviction for rape. . . .

Id. (citations omitted). See also State v. John Haws Burrell, No. 03C01-9404-CR-00157,

Anderson County (Tenn. Crim. App. filed Feb. 11, 1997, at Knoxville) (in which a panel

of this Court adopted with approval Judge Tipton’s conclusion that the term “feloniously”

necessarily implies the mens rea of intentional, knowing or reckless).                               The same

reasoning applies in this case. This issue is without merit.



                  The petitioner also complains that the court below erred when it dismissed

his petition summarily. It did not. Habeas corpus relief is available only when the

judgment is void upon its face or the petitioner’s sentence has expired. Archer v. State,

851 S.W.2d 157, 164 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn.

Crim. App. 1994). No such grounds have been demonstrated here: the “defect” about

which the petitioner complains did not divest the trial court of jurisdiction or render the

subsequent post-indictment proceedings a nullity. Nor does the petition set forth grounds

for relief under the post-conviction act.1 The indictment charging the petitioner with

aggravated rape was sufficient on which to base valid convictions, and no evidentiary



         1
          Furthermore, as noted by the State, the instant petition was not filed in the county in which the
conviction s occu rred. Acc ordingly, the c ourt below lacked jurisdiction to conside r it as a petition fo r post-
conviction relief. See Oliphan t v. State, 806 S.W .2d 215, 217 (Tenn. Crim . App. 1991).

                                                        3
hearing was therefore necessary. The judgment below is therefore affirmed.




                                             _________________________________
                                             JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
WILLIAM M. BARKER, Judge




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