         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 1, 2005

              MILTA D. BLANCHARD v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                          No. P-28149    Joseph B. Dailey, Judge



                     No. W2004-01801-CCA-R3-HC - Filed May 13, 2005


The petitioner, Milta D. Blanchard, appeals the Shelby County Criminal Court’s denial of habeas
corpus relief and claims that his 1992 conviction of reckless endangerment is void because the
charging instrument did not charge the offense of reckless endangerment. We affirm the dismissal
of the petition.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL
and J.C. MCLIN , JJ., joined.

Lorna McClusky, Memphis, Tennessee (at trial); and William D. Massey, Memphis, Tennessee (on
appeal), for the Appellant, Milta D. Blanchard.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jamie Kaplan, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

               The record reveals that the petitioner was charged with aggravated assault by using
a pistol to cause the victim’s fear of imminent bodily injury. See Tenn. Code Ann. § 39-13-102
(2003). Pursuant to his 1992 written plea agreement, the petitioner pleaded guilty to reckless
endangerment, a Class E felony, and was sentenced to a Range I term of two years in the county
workhouse. In 2004, the petitioner filed a petition for habeas corpus relief, in which he asserted
that the conviction offense was not charged in the indictment.

               The habeas corpus court conducted a hearing on the state’s motion to dismiss the
petition. During the hearing, counsel for the petitioner and the state informed the court that the
petitioner was awaiting sentencing on both state and federal convictions. Counsel for the petitioner
acknowledged that she represented the petitioner on the federal matters. The petitioner had
apparently long since completed service of the two-year sentence imposed in the challenged
conviction. Following the hearing, the court concluded that, as of the time of the offense in 1991
and the resulting conviction in 1992, reckless endangerment was considered a lesser included offense
of aggravated assault. Based upon this determination, the court dismissed the petition.

                The legal issues raised in a habeas corpus proceeding are questions of law, and our
review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (“[W]hether
to grant the petition [for habeas corpus relief] is a question of law that we review de novo.”); State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de novo ).

               Habeas corpus relief is available only when the aggrieved party’s conviction is void
because the convicting court lacked jurisdiction to impose the judgment or when the sentence has
expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner in the present case
has apparently long since completed his sentence pursuant to the challenged judgment and is no
longer incarcerated pursuant to that judgment. Thus, he claims that his conviction judgment is void
on the ground that the conviction court lacked jurisdiction to enter the judgment.

                 A void conviction is one which strikes at the jurisdictional integrity of the trial court.
Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App.1994). “‘Jurisdiction’ in the sense here used, is not limited to
jurisdiction of the person or of the subject matter but also includes lawful authority of the court to
render the particular order or judgment whereby the petitioner has been imprisoned.”; Anglin, 575
S.W.2d at 287; see Archer, 851 S.W.2d at 164; Passarella, 891 S.W.2d at 627.

                 “When there is a trial on a single charge of a felony, there is also a trial on all lesser
included offenses, ‘as the facts may be.’” State v. Willie D. Graham, No.03C01-9707-CC-00314,
slip op. at 19 (Tenn. Crim. App., May 7,1998) (quoting Strader v. State, 210 Tenn. 669, 362 S.W.2d
224, 227 (Tenn.1962)). When an individual is accused of a crime, however, the state must give the
accused adequate notice of the charged offense by specifying it in the indictment. See State v.
Trusty, 919 S.W.2d 305, 309 (Tenn.1996) (citing Tenn. Const. Art. I, § 9), overruled on other
grounds by State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999). A defendant cannot be legally
convicted of an offense that is not charged in the indictment or that is not a lesser included offense
embraced in the indicted charge. State v. Lampkin, 619 S.W.2d 520 (Tenn. 1981); McLean v. State,
527 S.W.2d 76 (Tenn. 1975); State v. Morris, 788 S.W.2d 820 (Tenn. Crim. App.1990)).

                 In the present case, the parties below debated whether reckless endangerment was a
lesser included offense of aggravated assault in 1992. We hold, however, that an issue nearer the
threshold of a habeas corpus proceeding disposes of the present case. Specifically, we hold that the
petitioner is neither imprisoned nor restrained of his liberty as a direct consequence of the challenged
judgment, and therefore, he is ineligible for habeas corpus relief.

                Article I, section 15 of the Tennessee Constitution establishes the right to seek habeas
corpus relief in Tennessee, but the procedures governing habeas corpus petitions are codified in


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Tennessee Code Annotated sections 29-21-101 through -130. Tennessee Code Annotated section
29-21-101 provides that “[a]ny person imprisoned or restrained of liberty, under any pretense
whatsoever, . . . may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment and restraint.” Tenn. Code Ann. § 29-21-101 (2003) (emphasis added). “The
ordinary meaning of the term ‘imprisoned’ is clear[; it] refers to actual physical confinement or
detention,” Hickman v. State, 153 S.W.3d 16, 22 (Tenn. 2004), but the meaning of “restrained of
liberty” for habeas corpus purposes is less obvious.

                 Although one need not be in physical confinement to be restrained of one’s liberty
for purposes of habeas corpus, id., “when the restraint on a petitioner's liberty is merely a collateral
consequence of the challenged judgment, habeas corpus is not an appropriate avenue for seeking
relief,” id. at 23. In Hickman, our supreme court held

               that a person is not “restrained of liberty” for purposes of the habeas
               corpus statute unless the challenged judgment itself imposes a
               restraint upon the petitioner’s freedom of action or movement. Use
               of the challenged judgment to enhance the sentence imposed on a
               separate conviction is not a restraint of liberty sufficient to permit a
               habeas corpus challenge to the original conviction long after the
               sentence on the original conviction has expired.

Id.

                This holding in Hickman disposes of the present petitioner’s claim to habeas corpus
relief. He does not allege that he remains imprisoned or is restrained of his liberty pursuant to the
challenged judgment. See id. at 24. Based upon the record of the hearing on the petition, the
petitioner apparently seeks to avoid the 1992 judgment as a means of diminishing his punishment
liability in ongoing – but unrelated – criminal proceedings. This is precisely the type of collateral
consequence of the challenged judgment that Hickman deemed unworthy of a habeas corpus remedy.

               Accordingly, the dismissal of the petitioner is affirmed.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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