            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                        FILED
                            JANUARY 2000 SESSION

                                                                 February 24, 2000

PAUL A. MAYES,                 *    C.C.A. # E1999-01374-CCA-R3-CD
                                                                 Cecil Crowson, Jr.
             Appellant,        *    MORGAN COUNTY               Appellate Court Clerk

VS.                            *    Hon. E. Eugene Eblen, Judge

STATE OF TENNESSEE,            *    (Habeas Corpus)

             Appellee.         *




For Appellant:                      For Appellee:
Joe H. Walker                       Paul G. Summers
District Public Defender            Attorney General and Reporter

Susan Corea Fuller                  Ellen H. Pollack
Assistant Public Defender           Assistant Attorney General
P.O. Box 334                        425 Fifth Avenue North
Harriman, TN 37748                  Nashville, TN 37243

                                    Scott McCluen
                                    District Attorney General
                                    P.O. Box 703
                                    Kingston, TN 37763




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              The petitioner, Paul A. Mayes, appeals the trial court's dismissal of his

petition for writ of habeas corpus. In this appeal of right, the single issue presented
for review is whether the petition was properly dismissed.



              We affirm the judgment of the trial court.


              In 1987, the petitioner entered pleas of guilt to first degree burglary

and grand larceny. Afterward, he was found to be a habitual criminal based upon
several prior offenses:

              (1)    Second degree burglary, July 14, 1977 (victim, Jack Smith);
              (2)    Second degree burglary, September 7, 1977 (victim, Orvil
                     Watson);
              (3)    Second degree burglary, September 7, 1977 (victim, Jay
                     Lewis);
              (4)    Second degree burglary, November 10, 1978 (victim, Joyce
                     Bishop);
              (5)    Second degree burglary, November 10, 1978 (victim, Glenda
                     Inman); and
              (6)    Escape, December 12, 1981.

All the offenses occurred in Knox County. Because the defendant was found to be

a habitual criminal, the trial court enhanced the sentence to a term of life in prison.

The petitioner filed a direct appeal, challenging the finding of habitual criminality,
and this court affirmed. State v. Paul Allen Mayes, No. 1183 (Tenn. Crim. App., at

Knoxville, Oct. 20, 1988). The supreme court denied application for permission to

appeal (concurring in results only) on January 30, 1989. In 1988, the petitioner was
convicted of first degree burglary, aggravated assault, second degree burglary, and

grand larceny. On May 7, 1999, the petitioner, who was incarcerated in Morgan

County, filed a petition for habeas corpus relief alleging that because the trial court
failed to sign certain judgments, a portion of his prior convictions were facially

invalid. In particular, the petitioner challenged the 1987 and 1988 convictions in

Knox County in Case Numbers 27211, 26030, and 26031.



              The state produced minute entries for December 16, 1987, which

established that in Case No. 27211, the petitioner pled guilty to first degree burglary

(count one of the indictment) and grand larceny (count two of the indictment) and

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was found guilty of habitual criminality (counts seven and eight of the indictment).

Certified minutes, attested to and certified by a deputy clerk, include the following

language:
                                           (s) John J. Duncan, Jr.
                                           John J. Duncan, Jr., Judge
                                           Division I
                                           Criminal Court

The state also filed copies of four judgments dated September 14, 1988, in Case

Nos. 26030 and 26031, which bore the photocopied signature of Randall E. Nichols,
Judge. The offenses were grand larceny, second degree burglary, first degree

burglary, and aggravated assault. Copies of minute entries documenting those

judgments are included in the record.


               Upon review of the documents, the petitioner withdrew his objections

to the facial validity of the two convictions in No. 26030 and the two convictions in

No. 26031. The petitioner insisted that the state's failure to provide photo copies of

judgments bearing the signature of the judge in each of the counts in No. 27211

entitled him to habeas corpus relief. In support of his argument, the petitioner cites

Tenn. Code Ann. § 16-1-106:

               Minutes.--(a) The minutes of the court for each day's
               work shall be signed by the judge. The minute book shall
               provide a place for the judge's signature after the minute
               entries each day; however, where the orders of the court
               are photocopied so that an accurate facsimile of the
               entire order and judge's signature appears, it shall be
               sufficient for the judge to sign at the end of the minute
               book approving all of the minutes in the book.

The trial court denied relief on the basis that the petition did not establish that the
convicting court was without jurisdiction and did not establish that the sentence had

been served.



               In this state, a writ of habeas corpus may be granted only when a
petitioner has established lack of jurisdiction for the order of confinement or that he

is otherwise entitled to immediate release because of the expiration of his sentence.

See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,

443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his


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liberty, under any pretense whatsoever, . . . may prosecute a writ of habeas corpus,

to inquire into the cause of such imprisonment . . . ." Tenn. Code Ann. § 29-21-101.

The writ of habeas corpus, however, is available only when it appears on the face of
the judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence of imprisonment has otherwise expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,

62 (Tenn. 1992). Trial courts may summarily dismiss the petition for writ of habeas

corpus without the appointment of a lawyer and without an evidentiary hearing if

there is nothing on the face of the judgment to indicate that the convictions
addressed therein are void. Passerella v. State, 891 S.W.2d 619 (Tenn. Crim. App.

1994).



              Here, the petitioner does not allege that the trial court was without

jurisdiction and does not contend that his sentences have expired. He merely

indicates that the judgments in Case No. 27211 are void for the failure of the state to

provide documentation including the judge's signature.



              Initially, our review suggests that the petitioner does not attack any of

the judgments of conviction utilized to establish him as a habitual criminal and

nothing in the record indicates that his life sentence has expired. Moreover, there
were separate convictions and sentences for grand larceny and first degree

burglary. The petitioner, in our view, has not established a basis to set aside any of

the counts of conviction in 27211. It has long been held that the statutory
requirement that trial judges sign the minutes is directory only, not mandatory.

Jackson v. Jackson, 3 Shannon Cases 18 (1878); State ex rel. Pierce v. Hardin, 163

Tenn. 471, 43 S.W.2d 924 (1931). That proposition was upheld in a case cited by

the petitioner, Howard v. State, 217 Tenn. 556, 399 S.W.2d 738 (1966). Thus, the
failure of a trial judge to sign as directed by the statute does not render the judgment

a nullity. Crum v. Fillers, 6 Tenn. App. 547 (1926); Duboise v. State, 200 Tenn. 93,

290 S.W.2d 646 (1956). Because the statute at issue is directory rather than
mandatory, the petitioner would not be entitled to any relief in Case No. 27211 due


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to facial invalidity.



                Accordingly, the judgment is affirmed.


                                           ________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Joseph M. Tipton, Judge


_____________________________
James Curwood Witt, Jr., Judge




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