        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

           DANNY E. ROGERS v. HOWARD CARLTON, WARDEN

                 Appeal from the Criminal Court for Johnson County
                         No. 5337   Robert E. Cupp, Judge




               No. E2011-00686-CCA-R3-HC - Filed September 27, 2011


The petitioner, Danny E. Rogers, filed in the Johnson County Criminal Court a petition for
a writ of habeas corpus. The habeas corpus court summarily dismissed the petition, and the
petitioner appeals. The State filed a motion requesting that this court affirm the trial court’s
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Upon review
of the record and the parties’ briefs, we conclude that the petition was properly dismissed.
Accordingly, the State’s motion is granted and the judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed
          Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., AND D. K ELLY T HOMAS, J R., JJ., joined.

Danny E. Rogers, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

       The record before us reflects that on July 26, 2000, the petitioner was charged with
felony murder and especially aggravated robbery. At the October 5, 2000 preliminary
hearing, the Meigs County General Sessions Court dismissed the especially aggravated
robbery charge but bound over to the Meigs County Grand Jury a charge of second degree
murder. On November 27, 2000, the grand jury indicted the petitioner for felony murder and
especially aggravated robbery. Thereafter, on May 3, 2004, the petitioner pled guilty to
second degree murder and especially aggravated robbery, receiving a total effective sentence
of twenty-five years in the Tennessee Department of Correction.
        Subsequently, the petitioner filed a pro se petition for a writ of habeas corpus, alleging
that the trial court did not have jurisdiction or authority over him because the State failed to
properly file a motion to dismiss or vacate the general sessions court’s bind-over order. On
December 28, 2010, the habeas corpus court denied the petition, finding that the State “has
the power to submit any charge dismissed by a General Sessions Court to a Grand Jury for
its consideration.” Therefore, the court found that the petitioner’s judgments of conviction
were not facially void. On March 9, 2011, the petitioner filed a notice of appeal, challenging
the habeas corpus court’s ruling.

        Initially, the State argues that the appeal should be dismissed because the notice of
appeal was not timely filed. Rule 3(b) of the Tennessee Rules of Appellate Procedure
provides that a criminal defendant may appeal to this court following “a final judgment in
a . . . habeas corpus . . . proceeding.” Rule 4(a) of the Tennessee Rules of Appellate
Procedure instructs that

               the notice of appeal required by Rule 3 shall be filed with and
               received by the clerk of the trial court within 30 days after the
               date of entry of the judgment appealed from; however, in all
               criminal cases the “notice of appeal” document is not
               jurisdictional and the filing of such document may be waived in
               the interest of justice.

Clearly, the petitioner’s notice of appeal was filed beyond the thirty-day time limit. However,
this court may waive the timely filing. In the interest of justice, we will address the
petitioner’s concerns.

        Generally, the determination of whether to grant habeas corpus relief is a question of
law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the
petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be
sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A
void judgment ‘is one in which the judgment is facially invalid because the court lacked

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jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

        The petitioner maintains that at the preliminary hearing, the general sessions court
heard proof concerning the charges of felony murder and especially aggravated robbery. The
general sessions court found that there was not sufficient proof to establish a charge of felony
murder or especially aggravated robbery and bound over only the charge of second degree
murder. On appeal, the petitioner contends that before the State could seek an indictment on
the charges of felony murder and especially aggravated robbery, the State was required to file
a motion to vacate the General Session Court’s bind-over order. The petitioner also contends
that given the “illegal” nature of the State’s submitting the charges to the grand jury, the trial
court did not have jurisdiction to convict and sentence the petitioner for felony murder and
especially aggravated robbery as indicted by the grand jury.

        We note that Tennessee Rule of Criminal Procedure 5.1(c) provides that when “there
is not sufficient proof to establish that an offense has been committed or probable cause that
the defendant committed it, the magistrate shall discharge the defendant.” However, “[t]he
discharge of the defendant does not preclude the state from instituting a subsequent
prosecution for the same offense.” Tenn. R. Crim. P. 5.1(c); see also Waugh v. State, 564
S.W.2d 654, 660 (Tenn. 1978) (stating that when charges are dismissed in general sessions
court, the issuance of an indictment by the grand jury constitutes the beginning of a new
criminal proceeding against a defendant); State v. Thurman Randolph, No.
W2006-00261-CCA-R9-CD, 2006 WL 2993459, at *5 (Tenn. Crim. App. at Jackson, Oct.
20, 2006) (providing that the “subsequent issuance of an indictment by a grand jury marks
the beginning of a new criminal proceeding and not the continuation of the prosecution from
the preliminary hearing where the charges were dismissed”).

         Based upon the foregoing law, the habeas corpus court correctly found that the State
“has the power to submit any charge dismissed by a General Sessions Court to a Grand Jury
for its consideration.” We agree and conclude that because the judgments of conviction are
not facially void, the petitioner is thereby not entitled to habeas corpus relief. Accordingly,
we affirm the judgment of the habeas corpus court pursuant to Rule 20, Rules of the Court
of Criminal Appeals.


                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE



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