            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

              SAMMIE EUGENE RICE v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Putnam County
                           No. 90-0398   Leon Burns, Jr., Judge



                    No. M1998-00083-CCA-R3-PC - Decided April 20, 2000


The petitioner filed a petition for writ of habeas corpus, claiming that it was double jeopardy for him
to be sentenced, following his guilty pleas, to both second degree murder and assault with intent to
commit second degree murder, because only one person was killed. However, the records from his
previous petitions for post-conviction relief show that he pled guilty to killing his wife and
attempting to kill his wife’s brother. Based upon our review, we conclude that there was no basis
for granting relief and affirm the judgment of the trial court.

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

GLENN, J., delivered the opinion of the court, in which RILEY, J., and WITT, J., joined.

Sammie Eugene Rice, N.E.C.C., Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter, and Kathy Morante, Deputy Attorney General,
for the appellee, State of Tennessee.

                                             OPINION


       The petitioner, Sammie Eugene Rice, appeals the order of the Putnam County Criminal Court
denying his “Petition for Writ of Habeas Corpus, Or, In The Alternative, Motion to Dismiss Illegal
Sentence, and Re-Sentence According to Law” without a hearing and appointment of counsel. After
reviewing the record before this court, we affirm the judgment of the trial court.

        Following his guilty pleas on June 25, 1991, the petitioner was sentenced to twenty-five years
in the Department of Correction for the second degree murder of his wife and twelve years for
assault of his wife’s brother with intent to commit second degree murder. The sentences were
ordered to be served consecutively for an effective sentence of thirty-seven years. The sentences and
the method the sentences were to be served were pursuant to a plea bargain agreement. No direct
appeal was taken from these judgments. On October 24, 1991, the petitioner filed a petition seeking
post-conviction relief. The trial court appointed counsel to represent the petitioner, and a full
evidentiary hearing was held. Petitioner presented two issues: (1) that he received ineffective
assistance of counsel; and (2) that his guilty pleas were not voluntarily entered. This court affirmed
the judgment of the post-conviction court denying the petition. See Sammie Eugene Rice v. State,
No. 01C01-9308-CC-00252, 1993 WL 503706 (Tenn. Crim. App., Nashville, Dec. 9, 1993), perm.
app. denied (Tenn. April 4, 1994).

        Petitioner filed a second petition for post-conviction relief on July 20, 1998, which the post-
conviction court dismissed on August 14, 1998, without a hearing and without the appointment of
counsel on the grounds that it was time-barred and that there were no legitimate grounds to reopen
the petition based on the stated allegations. No appeal was taken from this denial. On August 30,
1998, petitioner filed, with the Putnam County Criminal Court, the motion styled “Petition For Writ
of Habeas Corpus, Or, In The Alternative, Motion To Dismiss Illegal Sentence, and Re-Sentence
According to Law.” That petition was dismissed without a hearing on September 29, 1998.
Petitioner appealed this dismissal on October 23, 1998. It is this appeal that is presently before this
court. After numerous delays in locating records, all briefs were filed by February 4, 1999.

        We note at the outset that a habeas corpus petition must be filed in the court nearest the
applicant. See Tenn. Code Ann. § 29-21-105. This is usually the county where the prisoner is
incarcerated unless sufficient reason be given in the petition for not doing so. See State ex rel. Leach
v. Avery, 215 Tenn. 425, 387 S.W.2d 346 (1964). Petitioner filed his petition in Putnam County
while incarcerated temporarily in the Nashville Community Service Center in Davidson County.
He was later moved to Johnson County and then to the Turney Center in Hickman County.
Petitioner stated that he filed his application with the Putnam County Criminal Court because of
uncertainty about his destination.

        The right to seek habeas corpus relief is guaranteed by Article I, Section 15 of the
Constitution of the State of Tennessee. Procedures applicable to seeking the writ are codified at
Tennessee Code Annotated Sections 29-21-101 to -130. In Tennessee, grounds upon which habeas
corpus relief will be granted are very narrow. The writ will issue “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 v. State, 851 S.W.2d 157, 164
(Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). Therefore, a
habeas corpus petition may only be utilized to successfully contest void, as opposed to simply
voidable, judgments. See Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). A void judgment is one
in which the judgment is facially invalid because the court lacked jurisdiction or authority to render
the judgment or because the defendant’s sentence has expired. See Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998).

         The petitioner asserts in his brief that his punishments for both second degree murder and
assault with intent to commit second degree murder represent double jeopardy and are, therefore,
illegal, because only one victim was killed. Although the record before this court does not contain
the indictment or judgment, thus precluding adequate review, the record previously before this court
in petitioner’s first petition for post-conviction relief indicates that there were in fact two victims:
(1) his wife, for whose death petitioner was sentenced to twenty-five years; and (2) his wife’s

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brother, for whose assault with intent to commit second degree murder petitioner was sentenced to
twelve years. Therefore, we conclude that the sentences for these two crimes were legal, and
therefore, the convicting court had jurisdiction to render judgment.




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