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        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 10, 2017

             ANTHONY DODSON v. BLAIR LEIBACH, WARDEN

                Appeal from the Circuit Court for Trousdale County
                  No. 2016-CV-4540 John D. Wootten, Jr., Judge
                     ___________________________________

                           No. M2016-00578-CCA-R3-HC
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Petitioner, Anthony Dodson, appeals from the trial court’s summary dismissal of his pro
se petition for writ of habeas corpus in which he alleged that his conviction for attempted
first degree murder is illegal. After a thorough review, we affirm the judgment of the
trial court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Anthony Dodson, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; and Tom P. Thompson, Jr., District Attorney General, for the appellee,
State of Tennessee.

                                       OPINION

Background

      Petitioner was convicted by a Shelby County jury of attempted first degree
murder, a Class A felony, and sentenced to twenty-five years as a Range I standard
offender. On appeal this court affirmed the conviction and sentence. State v. Anthony
Dodson, No. W2009-02568-CCA-R3-CD, 2011 WL 2176581 (Tenn. Crim. App. June 2,
2011). Petitioner filed a petition for post-conviction relief. Anthony Dodson v. State, No.
W2012-00567-CCA-R3-PC, 2013 WL 1187938 (Tenn. Crim. App. Mar. 21, 2013).
After a hearing, the trial court dismissed the petition, and this court affirmed the
dismissal. Id.
       On July 13, 2016, Petitioner filed a petition for writ of habeas corpus alleging that
count two of his indictment, charging him with theft, was dismissed upon motion of the
State. Count one charged attempted first degree murder, and he was convicted by a jury.
Petitioner alleged that the trial court lost jurisdiction in count one when that charge was
not resubmitted to the grand jury after count two was dismissed. The habeas corpus court
summarily dismissed the petition without a hearing. In its order the court stated:

        The Petitioner’s chief complaint is that the State requested that count two
        of the indictment alleging a theft in the original case divested the trial
        court of its jurisdiction. The petitioner argues that the indictment should
        have been re-submitted to the Grand Jury. The petitioner cites no
        authority for his position.

        The State may terminate a prosecution by filing a dismissal of an
        indictment or a portion thereof. This dismissal may only be with the
        court’s permission. See Rule 48, Tenn. R. Crim. P. In essence, the
        petitioner originally faced a trial on two counts. He was convicted of
        [attempted] first-degree murder. The State dismissed the second count
        alleging theft prior to trial. Obviously this dismissal inured to his benefit
        inasmuch as the petitioner did not have to defend that charge nor, if
        convicted, was he subjected to additional punishment. A dismissal of
        one count of an indictment does not render a judgment on another valid
        count void. The trial court’s ability to dismiss a case ratifies its
        jurisdiction. This judgment is not void. The petitioner’s argument lacks
        merit.

Analysis

       On appeal, Petitioner argues that the trial court erred by summarily dismissing his
petition for habeas corpus relief. He asserts that after count two was dismissed, the
indictment was not “submitted back to the grand jury to remove the theft charge from the
grand jury indictment.”

       The right to habeas corpus relief is available “only when ‘it appears upon the face
of the judgment or the record of the proceedings upon which the judgment is rendered’
that a convicting court was without jurisdiction or authority to sentence a defendant, or
that a defendant’s sentence of imprisonment or other restraint has expired.” Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007) (quoting Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993)). In contrast to a post-conviction petition, a habeas corpus petition is used
to challenge void and not merely voidable judgments. Summers, 212 S.W.3d at 255-56.
A voidable judgment is one that is facially valid and requires proof beyond the face of the
record or judgment to establish its invalidity. Id. at 256; Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998). A void judgment “is one in which the judgment is facially invalid

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because the court lacked jurisdiction or authority to render the judgment.” Taylor v.
State, 995 S.W.2d 78, 83 (Tenn.1999); Dykes, 978 S.W.2d at 529.

        A petitioner bears the burden of proving a void judgment or illegal confinement by
a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A
trial court may summarily dismiss a petition for writ of habeas corpus without the
appointment of counsel and without an evidentiary hearing if there is nothing on the face
of the judgment to indicate that the convictions addressed therein are void. See Summers,
212 S.W.3d at 260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

       The determination of whether habeas corpus relief should be granted is a question
of law. Summers, 212 S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).
Therefore, our review is de novo with no presumption of correctness given to the findings
and conclusions of the lower court. Summers, 212 S.W.3d at 255; State v. Livingston,
197 S.W.3d 710, 712 (Tenn. 2006). The procedural requirements for habeas corpus relief
are mandatory and must be scrupulously followed. Summers, 212 S.W.3d at 260;
Hickman, 153 S.W.3d at 19-20; Archer, 851 S.W.2d at 165; T.C.A. § 29-21-107.

       Petitioner’s argument that “he’s being held on a void indictment and judgment
because the convicting court did not have jurisdiction to proceed once the true bill
indictment was changed or struck” is without merit. As pointed out by the trial court and
the State, Rule 48 of the Tennessee Rules of Criminal Procedure provides: “(a) By the
State. – With the court’s permission the state may terminate a prosecution by filing a
dismissal of an indictment, presentment, information, or complaint. A dismissal may not
be filed during the trial without the defendant’s consent.” There is no requirement that a
multi-count indictment be re-submitted to the grand jury when one count of the
indictment is voluntarily dismissed.

        It is obvious that nothing in the record indicates that Petitioner’s conviction or
sentence is void. The habeas corpus trial court may summarily dismiss a habeas corpus
petition without an evidentiary hearing if there is nothing on the face of the record or
judgment to indicate that the conviction or sentence are void. Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994); see also Tenn. Code Ann. § 29-21-109 (2010
Repl.). Petitioner is not entitled to relief on appeal. The judgment of the habeas corpus
trial court is affirmed.

                                        _______________________________________
                                        THOMAS T. WOODALL, PRESIDING JUDGE




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