        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs October 27, 2009

           JOEY E. HERRELL v. HOWARD CARLTON, WARDEN

                   Appeal from the Circuit Court for Johnson County
                           No. 5157 Robert E. Cupp, Judge




                  No. E2009-01162-CCA-R3-HC - Filed June 30, 2010




J OSEPH M. T IPTON, P.J., concurring.

       I concur in the result reached in the majority opinion, given existing precedent. I
believe though, that once the habeas court concludes that a judgment is void, it should
transfer the case to the convicting court—a court of equal jurisdiction—for further
proceedings. The habeas court should not be allowed to act further regarding the convicting
case by limiting the options available to the Petitioner or to the convicting court upon transfer
of the case.

        The procedure followed in the present case, by developing a record in the habeas court
to determine whether or not a guilty plea may be withdrawn, stems from the interpretation
this court made in Summers v. Fortner, 267 S.W.3d 1 (Tenn. Crim. App. 2008), regarding
two Tennessee Supreme Court opinions. See Summers v. State, 212 S.W.3d 251 (Tenn.
2007); Smith v. Lewis, 202 S.W.3d 124 (Tenn. 2006). However, I see nothing in the
supreme court cases that even hints at allowing the habeas court to bind a convicting court
by determining whether a Petitioner is entitled to withdraw a guilty plea. Upon determining
that a conviction or sentence is void, the habeas court should vacate the judgment of
conviction and remand the case to the convicting court for further proceedings. Whether or
not the Petitioner is entitled to withdraw his guilty plea should be left to the convicting court
to decide.

      Because Summers v. Fortner is binding precedent, I must concur wholly in this case.
See Tenn. Sup. Ct. R. 4(G)(2). I believe, however, that its holdings should be reviewed by
the Tennessee Supreme Court in this case and that the convicting court should be determined
to be the forum for deciding whether or not a guilty plea may be withdrawn.




                                                  JOSEPH M. TIPTON, PRESIDING JUDGE




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