        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON


BARRY WELLS,                    )
                                )         NO. 02C01-9610-CV-00358
    Appellant,                  )
                                )         LAUDERDALE COUNTY
VS.

RONNIE RICKARD,
                 FILED          )
                                )
                                )
                                          HON. JOSEPH H. WALKER, III,
                                          JUDGE
               November 20, 1998)
    Appellee.                   )         (Habeas Corpus)
                 Cecil Crowson, Jr.
                 Appellate C ourt Clerk

     UPON REMAND FROM THE SUPREME COURT OF TENNESSEE



FOR THE APPELLANT:                        FOR THE APPELLEE:

ROBERT L. HUTTON                          JOHN KNOX WALKUP
One Commerce Sq., Ste. 1700               Attorney General and Reporter
Memphis, TN 38103
                                          ELLEN H. POLLACK
                                          Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          ELIZABETH T. RICE
                                          District Attorney General

                                          MARK E. DAVIDSON
                                          Assistant District Attorney General
                                          302 E. Market Street
                                          Somerville, TN 38068




OPINION FILED: ______________



AFFIRMED



JOE G. RILEY,
JUDGE
                                   OPINION


       This case is before this Court upon a remand from the Supreme Court of

Tennessee in light of its decision in City of White House v. Whitley, ___ S.W. 2d

___, No. 01S01-9711-CH-00259 (Tenn. October 12, 1998). We must determine

whether a judgment of conviction punishable by incarceration which was imposed

by a non-lawyer judge without objection by the defendant is void if the judgment was

entered prior to the Supreme Court’s opinion in White House. We conclude such

a conviction is not void; therefore, it may not be attacked by habeas corpus. In this

case, however, the petitioner was granted relief by the trial court as to a probation

revocation order by a non-lawyer judge due to the absence of waiver of counsel.

Thus, although we do not void the original judgment of conviction, we affirm the trial

court’s order of remand to the General Sessions Court for a new revocation hearing.



                            PROCEDURAL HISTORY



       This Court originally affirmed the authority of the non-lawyer General

Sessions judge to order the incarceration of the petitioner. See Barry Wells v.

Ronnie Rickard, C.C.A. No. 02C01-9610-CV-00358, Lauderdale County (Tenn.

Crim. App. filed June 9, 1997, at Jackson). The Supreme Court of Tennessee

granted permission to appeal and on November 2, 1998, remanded the matter to

this Court for reconsideration in light of City of White House v. Whitley, supra.



                                       FACTS



       Petitioner, Barry Wells, appeared before the non-lawyer General Sessions

judge of Lauderdale County on the charge of theft under $500.00, a Class A

misdemeanor. He waived his right to counsel and trial by jury and was found guilty

by the non-lawyer judge. He received a sentence of 11 months and 29 days with

all but 30 days being suspended.




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       Subsequently, petitioner appeared before the same non-lawyer judge on a

probation violation warrant. Although the petitioner was not advised of his right to

counsel and counsel was not appointed to represent him, the non-lawyer judge

revoked probation and ordered the defendant to serve the balance of his sentence.

       Petitioner subsequently filed a habeas corpus action in the Circuit Court. The

Circuit Court ordered a remand to the General Sessions Court for a new hearing

due to the absence of a waiver of the right to counsel. Petitioner appealed to this

Court alleging the Circuit Court erred in failing to declare that the non-lawyer

General Sessions judge had no authority to order incarceration.



                                   DISPOSITION



       In City of White House v. Whitley, ___ S.W.2d at ___, the Supreme Court of

Tennessee ruled that a non-lawyer judge cannot preside over trials of criminal

offenses punishable by incarceration in the absence of a written waiver by the

defendant consistent with Tenn. R. Crim. P. 5(c). The Court found such to be in

violation of due process under Article I, § 8 of the Tennessee Constitution. The

Court further announced the ruling was only applicable to (1) cases tried or retried

after the date of its opinion, and (2) cases on appeal in which the due process issue

was raised in the trial court and preserved as a ground for appeal. Id.

       In this case the due process issue was not raised in the General Sessions

Court nor in the Circuit Court on appeal. It was raised for the first time via habeas

corpus. Habeas corpus relief is available only when the judgment is void as

opposed to voidable. See Dykes v. Compton, ___ S.W.2d ___, ___ (Tenn. 1998);

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

       In White House the Supreme Court declared that its ruling only applied to

cases tried or retried after the filing of its opinion and to cases on appeal in which

the due process issue was properly raised and preserved. White House, ___

S.W.2d at ___. Thus, convictions entered by non-lawyer judges prior to White

House are not void; otherwise, all such convictions would be subject to habeas


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corpus attack even after the filing of White House.

         In the case sub judice the judgment of conviction by the non-lawyer judge

was not void. It could not be attacked by habeas corpus. For this reason, the

original judgment of conviction should not be set aside.

         Nevertheless, petitioner was accorded some relief by the trial court. The trial

court set aside the probation revocation order due to the absence of waiver of

counsel. We see no reason to disturb this ruling.1



                                        CONCLUSION



         Based upon the foregoing, we affirm the judgment of the trial court. The

matter shall be remanded to the General Sessions Court for a new revocation

hearing. 2




                                                ____________________________
                                                JOE G. RILEY, JUDGE




CONCUR:



_______________________________
JOHN H. PEAY, JUDGE




         1
             We note that the present General Sessions judge of Lauderdale County is a lawyer-
judge.
         2
        The original opinion in this Court was authored by Presiding Judge Joe B. Jones.
Judge Jones is now deceased; therefore, only two judges participated in the present opinion.


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