         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 21, 2004

                 FLOYD CAMPBELL v. KEVIN MYERS, Warden

                   Direct Appeal from the Circuit Court for Wayne County
                           No. 14002    Robert L. Holloway, Judge



                    No. M2003-02084-CCA-R3-HC - Filed August 17, 2004


This is a habeas corpus appeal. A jury convicted the petitioner of seven counts of rape of a child,
one count of incest, and three counts of aggravated sexual battery. He received an effective sentence
of twenty-two years incarceration. In April 2003, the petitioner submitted a pro se petition for
habeas corpus relief, alleging the sentences for child rape committed in 1992 are illegal because the
record is unclear as to whether these offenses were committed before or after July 1, 1992, the
effective date of the child rape statute. The trial court dismissed the petition, and the petitioner
appeals the dismissal. We affirm the judgment of the trial court.

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

JOE G. RILEY , SP . J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT W.
WEDEMEYER, JJ., joined.

Floyd Campbell, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; and
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        The petitioner was convicted by a Cannon County jury of seven counts of child rape, one
count of incest, and three counts of aggravated sexual battery. He received an effective sentence
of twenty-two years at 100%, and, when the state agreed not to appeal from the imposition of
concurrent sentences, the petitioner waived his right to a direct appeal. See Floyd Campbell v. State,
No. M2001-00408-CCA-R3-PC, 2002 WL 970441, at *1 (Tenn. Crim. App. May 10, 2002), perm.
to app. denied (Tenn. 2002). The petitioner subsequently sought post-conviction relief which was
denied, and the denial was affirmed on appeal. See id.

        Thereafter, the petitioner sought habeas corpus relief. He contends the trial court imposed
illegal sentences in the child rape judgments because the record indicates the crimes may have
occurred prior to the effective date of the statute. He further contends the date the offenses were
alleged to have occurred was an essential element for any legal conviction under the child rape
statute; therefore, the state’s failure to make reference to a date after July 1, 1992, in the various
counts of the indictment renders the indictment constitutionally insufficient.

        The petitioner’s contentions take on significance because prior to July 1, 1992, the unlawful
penetration of a child under thirteen years of age constituted aggravated rape. See Tenn. Code Ann.
§ 39-13-502(a)(4) (1991). For sentencing purposes, a standard offender convicted of aggravated rape
prior to July 1, 1992, was eligible for release after serving 30% of the sentence. See id. § 40-35-
501(c) (Supp. 1991). On the other hand, the unlawful penetration of a child under thirteen years of
age from July 1, 1992, forward constitutes child rape, see id. § 39-13-522(a) (Supp. 1992), and the
entire sentence must be served “undiminished by any sentence reduction credits,” see id. § 39-13-
523(b) (Supp. 1992).

                                 I. HABEAS CORPUS RELIEF

        Article I, § 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 et seq. codifies the applicable procedures for
seeking a writ. While there is no statutory time limit in which to file for habeas corpus relief,
Tennessee law provides very narrow grounds upon which such relief may be granted. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition may be used only to contest void
judgments which are facially invalid because (1) the convicting court was without jurisdiction or
authority to sentence a defendant; or (2) defendant’s sentence has expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993).

         The burden of showing that the judgment is “void” rests with the petitioner. Wyatt v. State,
24 S.W.3d 319, 322 (Tenn. 2000). That burden entails showing that the jurisdictional defect appears
in the record, thereby creating a void judgment. State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).
A judgment that is merely “voidable” may not be reached under habeas corpus review. Id. Where
the allegations in a petition for writ of habeas corpus do not demonstrate that the judgment is void,
a trial court may correctly dismiss the petition without a hearing. McLaney v. Bell, 59 S.W.3d 90,
93 (Tenn. 2001) (citing Tenn. Code Ann. § 29-21-109 (2000)). A voidable judgment, which is
facially valid and requires proof beyond the face of the record to establish that it is void, may not
be collaterally attacked by means of habeas corpus. Archer, 851 S.W.2d at 162.

        The determination of whether habeas corpus relief is proper is a question of law; thus, this
court affords the question de novo review with no presumption of correctness given to the trial
court’s rulings. McLaney, 59 S.W.3d at 92.

A. Factual Background

       The petitioner was convicted of seven counts of child rape, one count of incest, and three
counts of aggravated sexual battery. Only the seven child rape convictions are at issue in this
appeal. All child rape counts in the indictment alleged the petitioner violated “T.C.A. 39-13-522,”
which codifies the offense of child rape. The statute went into effect July 1, 1992. See 1992 Tenn.
Public Acts, ch. 948, § 2.



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       Counts four, six, and eight of the indictment allege the unlawful penetration of a child less
than thirteen years of age “in 1992” in violation of “T.C.A. 39-13-522.” Counts ten, twelve,
fourteen, and sixteen of the indictment allege the unlawful penetration of a child less than thirteen
years of age “in 1993” in violation of “T.C.A. 39-13-522.” The judgments for all child rape
convictions state the offenses were committed in “1992-1993,” in violation of “TCA#: 39-13-522.”

B. Analysis

         In this case, counts four, six, and eight alleged offenses committed “in 1992.” Thus, the time
frame referenced in these indictments includes six months prior to the effective date of the child rape
statute, as well as six months following the effective date of the statute. We note, however, that all
counts alleged a violation of Tennessee Code Annotated section 39-13-522, as did each of the
judgments of conviction. Thus, the petitioner was indicted for and convicted of child rape. The
judgments are certainly not void on their face.

         The only means by which the petitioner could demonstrate that one or more of these offenses
were committed prior to July 1, 1992, would require an examination of the evidence introduced at
trial via a trial transcript. Whether the offenses were committed after July 1, 1992, was a question
that should have been determined by the jury, although we have no way of knowing whether the jury
actually made such a determination due to the absence of the trial transcript from the record before
us. Regardless, habeas corpus relief is unavailable under these circumstances because the court
would be required to determine whether the evidence was sufficient beyond a reasonable doubt to
establish that the offenses were committed on or after July 1, 1992. See Gant v. State, 507 S.W.2d
133, 136 (Tenn. Crim. App. 1973) (holding habeas corpus relief is not available to challenge the
sufficiency of the evidence). Therefore, this case is distinguishable from McLaney, which involved
habeas review of a pure question of law. See McLaney, 59 S.W.3d at 92. This issue is without merit.

        We further note that counts ten, twelve, fourteen, and sixteen allege child rapes “in 1993.”
The child rape statute was in effect during the entire year 1993. The fact that the judgments recite
the offense dates as “1992-1993” does not render the judgments void. Accordingly, we find the
statute was correctly applied to the petitioner, and these four counts clearly cannot be the proper
subject of habeas corpus relief.

                          II. SUFFICIENCY OF THE INDICTMENT

         The petitioner argues the trial court’s application of Tennessee Code Annotated section 39-
13-523 in sentencing amounts to adding a new “element” to the offense of child rape: the date on
which the offense was committed. Because section 39-13-523 requires the sentencing court to
impose service of a full sentence without any sentence credits only if the offense was committed on
or after July 1, 1992, the petitioner contends the indictment was flawed as failing to provide the date
of the offenses.

         The date of the offense need not be stated in the indictment “unless the time is a material
ingredient in the offense.” Tenn. Code Ann. § 40-13-207. The date of the offense should be alleged
if “the time is important to bring the offense within the operation of new or amended statutes.”
State v. West, 737 S.W.2d 790, 792 (Tenn. Crim. App. 1987) (quoting State v. Shaw, 113 Tenn. 536,

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538, 82 S.W. 840 (1904)). Counts ten, twelve, fourteen, and sixteen allege the offenses occurred
“in 1993.” Since the child rape statute was in effect during the entire year of 1993, these counts are
clearly not defective. It may be that counts four, six, and eight alleging child rape “in 1992” were
subject to challenge for failing to specify the offenses were committed on or after July 1, 1992.
However, the remedy for challenging a defective indictment, as opposed to one failing to vest
jurisdiction or charge an offense, is a pre-trial motion to dismiss, see Tenn. R. Crim. P. 12(b)(2), not
habeas corpus, see Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000).

        Only a void indictment that does not vest jurisdiction in the court is subject to a habeas corpus
challenge. Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Thus, we proceed to examine
counts four, six, and eight to determine whether they provide constitutionally sufficient notice of
the offense of child rape.

       An 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 . . . .” Tenn. Code Ann. § 40-13-202. To satisfy our constitutional notice
requirements, an indictment must provide notice of the offense charged, an adequate basis for the
entry of a proper judgment, and suitable protection against double jeopardy. State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997). An indictment need not conform to strict pleading requirements. Id.

        The Tennessee Supreme Court continues to emphasize the relaxation of common law
pleading requirements, as well as its reluctance to promote form over substance in examining the
sufficiency of an indictment. See State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000).
Indictments which satisfy the requirements for adequate notice to the defendant also satisfy
constitutional and statutory requirements. Id. For example, an indictment which refers to the statute
defining the offense is sufficient both to provide a defendant with notice and to satisfy constitutional
and statutory requirements. State v. Sledge, 15 S.W.3d 93, 94 (Tenn. 2000). Furthermore, an
indictment alleging all elements of an offense is sufficient even though it does not allege the specific
theory upon which the prosecution intends to rely to prove each element. State v. Lemacks, 996
S.W.2d 166, 172 (Tenn. 1999). Nevertheless, if an indictment is so defective as to fail to vest
jurisdiction in the trial court, it is subject to habeas corpus relief. See Dykes, 978 S.W.2d at 529.

        The petitioner’s argument is misplaced. Three of the child rape counts at issue alleged
commission “in 1992,” and the other four child rape counts alleged commission “in 1993.” Each
count further specified a violation of “T.C.A. 39-13-522,” the child rape statute. In our view, the
various counts of the indictment were sufficient to put the petitioner on notice he was charged with
child rape.

       We conclude habeas corpus relief is not an available vehicle to challenge the petitioner’s
convictions. Accordingly, we affirm the judgment of the trial court dismissing the petitioner’s
habeas corpus relief petition.



                                                        ____________________________________
                                                        JOE G. RILEY, SPECIAL JUDGE

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