       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE

                       FEBRUARY SESSION, 1997
                                                      FILED
                                                        July 16, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
JEFFREY ALLEN HUDSON               )   C.C.A. NO. 03C01-9605-CC-00200
                                   )
           Petitioner/Appellant,   )   BLEDSOE CO UNTY
                                   )
                                   )
V.                                 )   HON. THOMAS W. GRAHAM,
                                   )   JUDGE
JAMES BOWLEN, WARDEN,              )
                                   )   (HABEAS CORPUS/
           Appellee.               )   AGGRAVATED RAPE)




FOR THE APPELLANT:                     FOR THE APPELLEE:

JEFFREY ALLEN HUDSON, (pro se)         JOHN KNOX WALKUP
STSRCF, Route 4 Box 600                Attorney General & Reporter
Pikeville, TN 37367
                                       SARA M. BRANCH
                                       Assistant Attorney General
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       JAMES MICHAEL TAYLOR
                                       District Attorney General

                                       JAMES W. POPE, III
                                       Assistant District Attorney General
                                       265 Third Avenue, Suite 300
                                       Dayton, TN 37321




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

             This is an appeal as of right by Jeffrey Allen Hudson from the trial

court’s order dismissing his petition for writ of habeas corpus. The Circuit Court

of Bledsoe County, Tennessee dismissed the petition without an evidentiary

hearing based upon a finding that the judgment of conviction was facially valid.

W e note that the fifty (50) year sentence imposed upon Petitioner in 1987 has not

yet expired. The Petitioner raises two (2) issues in his appeal. He argues that

the trial court erred by ruling the judgment of conviction was voidable rather than

void and that the trial court erred by treating his writ of habeas corpus as a

petition for post-conviction relief. W e find no merit in either one of the Appellant’s

issues, and affirm the trial court.



             Appellant was convicted in the Criminal Court of Shelby County in

1987 for the aggravated rape of a twelve (12) year old child. He filed a direct

appeal from his conviction to this court.        On his direct appeal, he did not

challenge the sufficiency of the evidence to sustain the conviction, but alleged

reversible error caused by the admission into evidence of “other crimes”

evidence. This court found no reversible error and affirmed the conviction. State

v. Jeffrey Allen Hudson, No. 12, Shelby County (Tenn. Crim. App., Jackson, filed

November 16, 1988). Subsequently, Appellant filed a petition for post-conviction

relief in the Criminal Court of Shelby County, attacking his conviction for

aggravated rape. In his petition for post-conviction relief, he alleged ineffective

assistance of counsel during the prior proceeding. The trial court dismissed the

petition for post-conviction relief and this court affirmed. Jeffrey A. Hudson v.



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State, No. 02C01-9308-CR-00183, Shelby County (Tenn. Crim. App., Jackson,

filed December 7, 1994), perm. to appeal denied (Tenn. 1995).



             In his petition for writ of habeas corpus filed in the Circuit Court of

Bledsoe County, Appellant did not allege that his sentence had expired. He did

allege that the conviction was void because the Shelby County Court lacked

jurisdiction to enter the judgment because the crime “petitioner stands convicted

of did not occur in Shelby County, Tennessee, but in all actuality occurred in

Desoto County, Mississippi.” (Emphasis in original).



             Appellant requests relief by writ of habeas corpus based upon

allegations that the convicting court in Shelby County lacked venue and

jurisdiction to hear the case. In Archer v. State, 851 S.W.2d 157 (Tenn. 1993),

the court held:


             Habeas corpus relief is available in Tennessee 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.


Archer, 851 S.W .2d at 164.



             All that is contained in the record on appeal in this case is the

Petition for W rit of Habeas Corpus, without any attachments thereto, the trial

court’s order dismissing the petition, and the Appellant’s Notice of Appeal.

However, from the opinion of this court in the direct appeal by Appellant from his

conviction, we note that he was convicted following a jury trial in the Shelby


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County Criminal Court. W e may therefore presume that venue of the offense in

Shelby County was satisfactorily proven, and jurisdiction was also proven that the

crime had occurred in the State of Tennessee and not in Mississippi. In Bomar

v. State, ex rel. Stewart, 201 Tenn. 480, 300 S.W .2d 885 (1957), a defendant

pled guilty to kidnapping, armed robbery, and grand larceny in the Criminal Court

of Montgom ery County for offenses which were committed when the defendant

was a juvenile. There was no hearing in juvenile court to transfer the case for the

defendant to be tried as an adult. However, at the defendant’s arraignment in

criminal court, he informed his attorney, the district attorney, and the trial court

that he was eighteen (18) years of age. The defendant subsequently filed a

petition for writ of habeas corpus alleging that the criminal court was without

jurisdiction to enter a judgment of conviction when he was not an adult. He

specifically alleged that the judgments were void on their face. The trial court

sustained the petition after hearing the proof of the defendant’s age at the time

of the offenses. The Tennessee Supreme Court reversed and denied the petition

for writ of habeas corpus. In so doing, that court held:


      In the present case the jurisdiction of the criminal court over Stewart
      depended, in so far as pertinent here, upon a certain fact, to-wit, his
      age. The Trial Court made inquiry as to that fact, and found that
      Stewart was eighteen years old. This finding was based upon
      Stewart’s own statement to his Court appointed attorney and to the
      district attorney. Such being the situation, the Court’s finding in the
      matter is conclusive on collateral attack, according to the weight of
      authority.


Bomar, 300 S.W .2d at 889.


             W e conclude that the original trial of Appellant which led to his

conviction of aggravated rape necessarily included a finding by the trial court and




                                        -4-
the jury that venue, and by necessity jurisdiction, of the offense was appropriately

in Shelby County, Tennessee. This issue is without merit.



             In his other issue, Appellant argues that the trial court erred by

treating the petition for habeas corpus as a petition for post-conviction relief and

thereby dismissing it due to being filed after the statute of limitations had expired.



             The record itself reflects that this issue is totally without merit. In its

order, the trial court found that at most, the judgment of conviction was not void,

but voidable, and therefore the petition for writ of habeas corpus should be

denied. The trial court merely noted that it had authority under Tennessee Code

Annotated section 40-30-205 to treat the habeas corpus petition as a petition for

post-conviction relief under proper circumstances.          However, the trial court

specifically found that it could not treat the Appellant’s petition as one for post-

conviction relief because it was not filed within the statute of limitations period

and it was not filed in the court of the county of conviction.



             Finding both of Appellant’s issues to be without merit, we affirm the

judgment of the trial court.




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                        ____________________________________
                        THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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