            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON           FILED
                           JUNE 1995 SESSION
                                                    September 13, 1995

                                                     Cecil Crowson, Jr.
                                                     Appellate Court Clerk
MELVIN CURRIE,                     )   NO. 02C01-9501-CC-00020
                                   )
            Appellant              )   HAYWOOD COUNTY
                                   )
V.                                 )   HON. DICK JERMAN, JR.
                                   )   JUDGE
STATE OF TENNESSEE,                )
                                   )   (Habeas corpus)
            Appellee               )




FOR THE APPELLANT:                     FOR THE APPELLEE:

Melvin Currie, Pro Se                  Charles W. Burson
Reg. No. 13338-076                     Attorney General and Reporter
F.C.I. Memphis                         450 James Robertson Parkway
1101 John A. Denie Road                Nashville, Tennessee 37243-0493
Memphis, Tennessee 38184-0550
                                       Cyril V. Fraser
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, Tennessee 37243-0493

                                       Clayburn L. Peeples
                                       District Attorney General
                                       109 East First Street
                                       Trenton, Tennessee 38382




OPINION FILED: _____________

REVERSED AND REMANDED

William M. Barker, Judge
                                          OPINION

        On November 3, 1993, the appellant filed a pro se petition collaterally

attacking his March 4, 1991, felony conviction in the Circuit Court of Haywood County.

The petition was one seeking a writ of habeas corpus. By order entered May 18,

1994, the trial court dismissed the petition without appointing counsel for the appellant

and without an evidentiary hearing. It is from the action of the trial court in dismissing

the petition that this appeal is taken.

        After carefully considering the record in this case, the applicable law, and the

arguments of the parties, we conclude that the trial court erred in dismissing the

petition without appointing counsel and without conducting an evidentiary hearing.

Accordingly, we reverse the trial court's summary dismissal of the appellant's petition

and remand this cause with directions to the trial court to appoint counsel for the

indigent appellant and to conduct an evidentiary hearing to determine if the facts

support the granting of any relief to the appellant.

        In his inartfully drawn petition the appellant alleged that:

        (1)   The trial court exceeded its jurisdiction in sentencing him to
              a sentence in excess of that provided by law;

        (2)   His guilty plea was involuntarily and not intelligently
              entered; and

        (3)   He was denied effective assistance of counsel.

        In Passarella v. State, 891 S.W.2d 619, 626-27 (Tenn. Crim. App. 1994), this

Court outlined the circumstances under which habeas corpus relief is available:

              It is a well-established principle of law that the remedy of
              habeas corpus is limited in scope as well as relief. In
              criminal cases, the remedy is limited to cases where the
              judgment is void or the term of imprisonment has
              expired . . . 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.




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        Appellant's claim that the trial court lacked jurisdiction to sentence him to a

term in excess of that provided by law, if true, would render his conviction void. See

Archer v. State, 851 S.W.2d 157 (Tenn. 1993).

        Central to appellant's claim in this regard is his contention that he pled guilty

to Count 1 of a five count indictment. The State argues that he was convicted of one

(1) count of the indictment, not Count 1 of the indictment. The indictment charges, in

Count 1, that in December, 1988, the appellant sold counterfeit cocaine. The

remaining counts involved the felonious possession and/or sale of cocaine.

         Although the "Plea of Guilty and Waivers of Jury Trial and Appeal" form

executed by the appellant supports the position of the State in this regard, the true

source of the confusion in this case is the inconsistency on the face of the judgment

entered on March 4, 1991, following the appellant's guilty plea. On one place the

judgment form indicates that the appellant was convicted on Count 1 of the indictment

(selling counterfeit cocaine), and yet the body of the judgment form reflects that he

was convicted of the sale of cocaine (the offense charged in Count 3 of the

indictment).

        When the appellant entered his guilty plea, the crime of selling counterfeit

cocaine provided for a sentence of not less than one (1) year and not more than two

(2) years imprisonment for conviction as a Range I Class E felon. Tenn. Code Ann.

§ 40-35-118 (1994 Supp.) and § 40-35-112 (5) (1990 Repl.). The sale of cocaine is a

Class C felony and persons convicted of that offense are to be sentenced to not less

than three (3) years nor more than six (6) years as a Range I offender. Tenn. Code

Ann. § 40-35-118 and § 40-35-112 (3).

        Thus, if the appellant was convicted of the offense of selling counterfeit

cocaine upon his plea of guilty, the six (6) year sentence exceeded that allowed by law

for a Range I offender. Yet if he was convicted of selling cocaine upon his plea of

guilty, the sentence given was within the range provided by law for a Range I offender.



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Without an evidentiary hearing and findings of fact on this issue, we cannot determine

with any degree of certainty whose position is the correct one in view of the

contradictory judgment order in this case.

        The remaining allegations of the appellants petition, even if true, would not

render his conviction void as required for a writ of habeas corpus, but would render his

conviction voidable. In order for a court to issue a writ of habeas corpus, the

petitioner's sentence must have expired and/or the conviction must be void and the

petitioner eligible for immediate release. However, convictions which are either void

or voidable may be collaterally attacked by a petition for post-conviction relief pursuant

to the Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-105 (1990 Repl.).

        A petition for habeas corpus may be treated as a petition for post-conviction

relief. Tenn. Code Ann. § 40-30-108 (1990 Repl.). This petition was one which

should have been so treated. It was filed within the three (3) year period of limitation

provided by the Post Conviction Procedure Act, and it asserted allegations which, if

true, would entitle the petitioner to relief from his conviction.

        Therefore, the judgment of the trial court in dismissing the appellant's petition

is reversed, and this cause is remanded to the trial court for further action consistent

with this opinion.


                                                   William M. Barker, Judge
Concur by:




Paul G. Summers, Judge




Mary Beth Leibowitz, Special Judge




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