         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 25, 2005

                       CECIL MOSS v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Montgomery County
                          No. 40400225 Michael R. Jones, Judge



                   No. M2004-00787-CCA-R3-HC - Filed Februry 15, 2005


The Petitioner, Cecil Moss, filed a petition for writ of habeas corpus seeking relief from an allegedly
void judgment, which the trial court summarily dismissed. On appeal, the Petitioner contends that
the habeas corpus court erred by not holding an evidentiary hearing and that it erred when it
dismissed his petition. Finding no error in the judgment of the habeas corpus court, we affirm its
dismissal of the Petitioner’s petition for habeas corpus relief.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.

Roger E. Nell, Clarksville, Tennessee, for the appellant, Cecil Moss.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
John W. Carney, District Attorney General; and Helen O. Young, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        The Petitioner pled guilty to two counts of sale of cocaine, a Class B felony, and the trial
court sentenced him to serve eight years in community corrections starting May 15, 1992. The
Petitioner’s probation was revoked, he appealed to this Court, and we affirmed the trial court’s
judgment. In our opinion on the Petitioner’s appeal, we summarized the facts and procedural history
as follows:

       Defendant, Cecil Moss, appeals from the trial court’s order revoking his probation
       and reinstating his original sentence to be served in the Tennessee Department of
       Correction. Defendant argues that the trial court erred by failing to consider any
       alternative sentencing options other than incarceration. We affirm the judgment of
the trial court.

        Defendant pled guilty on May 15, 1992, to two counts of sale of cocaine, a
Class B felony. Following a sentencing hearing, Defendant was sentenced to eight
years, as a Range I, standard offender. Defendant’s sentence was suspended, and he
was placed on Community Corrections for eight years. On June 10, 1993, a violation
of probation was filed alleging that Defendant had failed to perform the requisite
community service work, failed to report to or attend group counseling, and failed to
abide by his imposed curfew. Following a revocation hearing, the trial court found
that Defendant was in violation of his probation but permitted Defendant to remain
in the community corrections program.

        On May 5, 1994, Defendant was transferred to the Tennessee Department of
Correction and placed on regular probation for the remainder of his sentence, six
years and two days. Defendant concedes that a violation of probation was filed on
December 30, 1996, alleging that Defendant had moved without providing a
forwarding address, had failed to report to his probation officer as required since
October, 1996, and was delinquent in paying his supervisory fees. The violation of
probation was amended on December 10, 2001, alleging that Defendant had been
arrested for first degree murder, especially aggravated burglary, and especially
aggravated robbery in Montgomery County and had failed to report these arrests to
his probation officer.

         At the revocation hearing, James Maxey, a probation officer with the
Tennessee Department of Parole and Probation, testified that Emanuel Tindle
initially served as Defendant’s probation officer. Mr. Maxey stated that Defendant
had not reported to the probation office since October 3, 1996, and the office was
unaware of Defendant’s location until his arrests in Montgomery County. Mr. Maxey
said that all court costs other than a $24.00 transportation charge had been paid, but
Defendant had not paid any supervisory fees since 1996.

         Defendant testified that he was living in Bowling Green, Kentucky prior to
his arrests in Montgomery County. He had previously lived in Guthrie, Kentucky for
six years and worked at Accomplish Industries under his own name. Defendant said
that he did not have a Kentucky driver’s license and his Tennessee license was
invalid. Defendant said that he was placed back on community corrections after his
first probation violation because he had a job with State Industries.

        Defendant insisted that he had reported to Mr. Tindle during 1996 and
perhaps in 1997. Defendant said that Mr. Tindle told him at some point in 1997 that
he no longer had to report because he was a model probationer. Defendant did not
report to Mr. Tindle or pay his supervisory fees after this conversation because he did
not think it was required and denied that he was in hiding. Defendant said that he


                                         -2-
        had given Mr. Tindle his mother’s address and telephone number. Defendant denied
        that either he or his mother received any letters concerning his missed appointments
        or probation violations and said that Mr. Tindle never told him there was an
        outstanding warrant for his arrest. As for the arrests in Montgomery County,
        Defendant said that the police “picked up the wrong person.”

                On rebuttal, Mr. Maxey said that Defendant was sent several letters at his
        mother’s address concerning his missed appointments from May, 1996, to October,
        1996. Defendant made up these appointments after he received the letters until
        October of that year. Mr. Maxey said that a letter was sent to Defendant on
        December 18, 1996 at his mother’s address, and the letter was not returned by the
        post office. After Mr. Maxey was assigned as Defendant’s probation officer, he said
        that he sent Defendant a letter on September 26, 1999, informing Defendant that a
        warrant had been issued for his arrest as a result of probation violations. The letter
        was not returned to Mr. Maxey’s office.

               At the conclusion of the revocation hearing, the trial court found Defendant’s
        testimony, that he was told not to report to his probation officer after 1997, was not
        credible. The trial court found that Defendant was in violation of the terms and
        conditions of his probation for failing to report as required. The trial court revoked
        Defendant’s probation and ordered him to serve the remainder of the sentence in the
        Tennessee Department of Correction.

State of Tennessee v. Ceil Moss, No. M2003-00477-CCA-R3-CD, 2004 WL 350642, at *1-2 (Tenn.
Crim. App., at Nashville, Feb. 25, 2004), perm. app. denied (Tenn. Sept. 13, 2004). In that appeal,
the Petitioner did not challenge the trial court’s revocation of his probation, but he contended that
the trial court erred in not considering him as a candidate for either probation or for participation in
the community corrections program. Id. at *2. The Petitioner submitted that he successfully
complied with the terms of his community corrections sentence, and he complied with the terms of
his probationary sentence for two years until he was told that he no longer needed to report. Id. This
Court concluded that the trial court did not abuse its discretion when it ordered the Petitioner to serve
his original sentence. Id. We noted that the Petitioner’s assertion that he successfully completed his
first participation in the community corrections program was “somewhat misleading” because the
Petitioner “violated the conditions of his community corrections sentence but was extended a second
chance, and it was this second attempt that was successfully completed.” Id.

        This Court filed its opinion in the Petitioner’s case on February 25, 2004, and, prior to our
decision, the Petitioner filed a petition for habeas corpus relief on February 4, 2004. In that petition,
the Petitioner contended that the trial court was without jurisdiction to revoke his probation because
his probation had expired. The habeas corpus court denied the Petitioner’s petition without holding
an evidentiary hearing. It is from that order that the Petitioner now appeals.




                                                  -3-
                                             II. Analysis

        On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his
petition without holding an evidentiary hearing. Further, he contends that the probation violation
warrant filed on December 10, 1996, was void. The Petitioner also asserts that the probation
violation warrant filed on December 10, 2001, was untimely. Therefore, the trial court lacked
jurisdiction to revoke the Petitioner’s probation pursuant to either of these warrants. Finally, the
Petitioner asserts that the trial court erred when it failed to “order sentencing credits in the various
judgments and orders.”

        Article I, section 15 of the Tennessee Constitution guarantees its citizens the right to seek
habeas corpus relief. In Tennessee, a “person imprisoned or restrained of [his or her] 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 (2000). The grounds upon which habeas corpus
relief will be granted are very narrow. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).
“Unlike the post-conviction petition, the purpose of a habeas corpus petition is to contest void and
not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, in
order to state a cognizable claim for habeas corpus relief, the petition must contest a void judgment.
Id. “A void judgment is one in which the judgment is facially invalid because the court did not have
the statutory authority to render such judgment . . . . A voidable judgment is one which is facially
valid and requires proof beyond the face of the record or judgment to demonstrate its voidableness.”
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing Archer v. State, 851 S.W.2d 157, 161
(Tenn. 1993)). Thus, a writ of habeas corpus is available only when it appears on the face of the
judgment or the record that the convicting court was without jurisdiction to convict or sentence the
defendant, or that the sentence of imprisonment or other restraint has expired. Archer, 851 S.W.2d
at 164; Potts, 833 S.W.2d at 62.

         The petitioner bears the burden of showing by a preponderance of the evidence that the
conviction is void or that the prison term has expired. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). Furthermore, the procedural requirements for habeas corpus relief are
mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165. It is permissible for a
trial court to summarily dismiss a petition 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. Passarella, 891 S.W.2d at 627; Rodney Buford v. State, No.
M1999-00487-CCA-R3-PC, 2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville, July 28,
2000), perm. app. denied (Tenn. Jan. 16, 2001). Because the determination of whether habeas
corpus relief should be granted is a question of law, our review is de novo with no presumption of
correctness. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

       In the case under submission, the habeas corpus court took judicial notice of this Court’s
opinion filed on February 25, 2004, and then it found:

       The facts as found in [the Court of Criminal Appeals] opinion establish that a warrant


                                                  -4-
        alleging that the [Petitioner] violated the terms of his probation was filed on
        December 30, 1996. That warrant stopped the running of his probation and it was
        filed within the probationary time. The amended warrant was filed within the
        probationary time. The fact that a probationer absconds and is not served with the
        warrant has no bearing on the expiration of probation.

       On appeal, the Petitioner’s first assertion is that the December 30, 1996, probation violation
warrant was void because it misstated his conviction date as May 13, 1904, rather than May 13,
1994. The section of the warrant titled “VIOLATION OF PROBATION,” reads in pertinent part:

        Before me, Allen W. Wallace, Judge of the Circuit Court in and for Dickson County,
        Tenn., personally came Emmanuel, who, being first duly sworn, says that Cecil
        HuEdward Moss, hereinafter referred to as the aforesaid, was on the 13 day of May,
        A.D. 1994 convicted of the offense of Sale of Cocaine Docket #CR131/CR132 in the
        Circuit Court of Dickson County . . . .

The probation violation warrant then states the reasons for the issuance of the probation violation
warrant. Later, under a section titled “WARRANT,” the document states that the Petitioner was
convicted of Sale of Cocaine “on the 13 day of May A.D. 1904.” The United States Supreme Court
set forth the elements needed to establish the “minimum requirements of due process” in a
revocation of probation proceeding, which include a “written notice of the claimed violations of
[probation or] parole . . . .” Gagnon v. Scarpelli, 411 U.S. at 786 (1973) (citing Morrissey v. Brewer,
408 U.S. 471 (1972)); see also State v. Wade, 863 S.W.2d 406, 408 (Tenn.1993). We conclude that
the probation violation warrant dated December 30, 1996, which properly listed the Petitioner’s date
of arrest in one section but contained a typographical error in another section, satisfies the minimum
requirements of due process. Accordingly, this warrant was not void, and the trial court had
jurisdiction to revoke the Petitioner’s probation.

        The Petitioner next contends that the December 10, 2001, probation violation warrant was
untimely. Generally, revocation may occur only within the probationary period. State v. Shaffer,
45 S.W.3d 553, 555 (Tenn. 2001). If, however, a probation revocation warrant is issued within the
term of probation, it tolls the limitation of time in which the court may act to revoke probation.
Alder v. State, 108 S.W.3d 263, 267 (Tenn. 2002) (emphasis omitted) (citing Shaffer, 45 S.W.3d at
555). Therefore, because we conclude that the 1996 warrant was valid, it tolled the limitation of
time in which the trial court had to act to revoke probation, and the Petitioner is not entitled to relief
on these grounds.

        The Petitioner next asserts that the trial court erred by failing to order sentencing credits in
the various judgments and orders. First, we note that this issue is waived because the Petitioner did
not raise this issue in his habeas corpus petition. Further, this Court has held, “[T]ime credits, being
internal matters, are generally inappropriate considerations in a habeas corpus proceeding. The
validity of any sentence reduction credits must be addressed through the avenues of the Uniform
Administrative Procedures Act.” Carroll v. Raney, 868 S.W.2d 721, 723 (Tenn. Crim. App. 1993).


                                                   -5-
Accordingly, the Petitioner is not entitled to habeas corpus relief based upon this assertion.

        Finally, the Petitioner asserts that the trial court erred when it summarily dismissed his
petition. As stated above, a habeas corpus court may summarily dismiss a petition for writ of habeas
corpus without an evidentiary hearing if there is nothing on the face of the judgment to indicate that
the Petitioner’s convictions are void or his sentence is expired. Passarella, 891 S.W.2d at 627. We
conclude that the habeas corpus court did not err when it summarily dismissed the Petitioner’s
petition.

                                          III. Conclusion

        In accordance with the foregoing reasoning and authorities, we conclude the Petitioner is not
entitled to a writ of habeas corpus. Accordingly, we affirm the habeas corpus court’s judgment
dismissing the Petitioner’s habeas corpus petition.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




                                                 -6-
