              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                      FILED
                                 MARCH SESSION, 1997
                                                                      November 4, 1997

                                                                     Cecil W. Crowson
MELVIN LEE BURKETT,                 )                               Appellate Court Clerk
                                    )
              Appellant,            )      No. 01C01-9605-CC-00202
                                    )
                                    )       Humphreys County
v.                                  )
                                    )       Honorable Allen W. Wallace, Judge
                                    )
STATE OF TENNESSEE,                 )       (Post-Conviction)
                                    )
              Appellee.             )



                                  DISSENTING OPINION



              I respectfully dissent because I believe that State v. Roger Dale Hill, Sr.,

No. 01C01-9508-CC-00267, Wayne County (Tenn. Crim. App. June 20, 1996), app.

granted (Tenn. Jan. 6, 1997), represents the law in Tennessee. The indictment in the

present case is similar to that in Hill in all material respects. I note that in Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), the United States Supreme

Court concluded that conviction and punishment of an individual upon legally

insufficient evidence constituted a violation of due process. I believe that, similarly,

conviction and punishment upon a void indictment would constitute a violation of due

process.



                                                   ____________________________
                                                   Joseph M. Tipton, Judge
