          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE          FILED
                                                September 10, 1997
                       MARCH 1996 SESSION
                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk

EUGENE MONTGOMERY                  )C.C.A. No. 03C01-9507-CC-00189
                                   )
     Appellant,                    ) Carter County
V.                                 )
                                   ) Hon. Arden L. Hill, Judge
STATE OF TENNESSEE                 )
                                   )(Post-Conviction Relief)
     Appellee,




FOR THE APPELLANT:                 FOR THE APPELLEE:


A. James Andrews                   Charles W. Burson
Attorney at Law                    Attorney General and
606 W. Main St.                    Michael J. Fahey
Knoxville, Tn. 37902               Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, Tn. 37243

                                   Kenneth Baldwin
                                   Assistant District Attorney
                                   900 E. Elk Ave.
                                   Elizabethton, Tn. 37643




     OPINION FILED: ______________________




     REVERSED AND REMANDED



     CHARLES LEE,
     Special Judge
                                  OPINION




    This is an appeal as of right from a judgment of the trial court summarily

dismissing the appellant's petition for post-conviction relief. The appellant

originally filed a writ of habeas corpus. The trial court apparently treated the

writ as a petition for post conviction relief and dismissed the petition without

appointing counsel or conducting an evidentiary hearing. The judgment of

the trial court is reversed. This matter is remanded to the trial court for an

appointment of counsel and an evidentiary hearing.



    The appellant filed a suit for habeas corpus relief on October 29, 1992.

The petition alleged that the appellant entered into a plea bargain agreement

to settle an aggravated assault charge. According to the petition, the

appellant and the State agreed his sentence for aggravated assault would run

concurrently with a parole violation. The appellant asserts that he should be

granted relief from his conviction because his sentence is illegal and the

judgment is void.



       The state filed an answer urging the trial court to consider the matter

as a post conviction petition, generally denying the allegations of the petition

and alleging no deprivation of a constitutional right.




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       The trial court dismissed the matter referring to the action as a "post

conviction writ" simply stating that the "... petitioner has not stated a cause of

action that has not been already in effect..."



       It is unnecessary to address whether this matter should be treated as

a habeas corpus or post conviction to resolve the issues. We note, however,

that in this jurisdiction a trial court has the discretion to treat a suit for habeas

corpus as a suit for post-conviction relief if the remedy is adequate and

appropriate to resolve the grounds raised. Tenn. Code Ann. § 40-30-108.

This Court has held that a trial court should treat a habeas corpus suit as a

suit for post-conviction relief when the pleadings of the parties do not comport

with the requirements applicable to habeas corpus suits, Trolinger v. Russell,

1 Tenn. Crim. App. 525, 446 S.W.2d 538 (1969); or the limited relief in

habeas corpus suits prevents an adjudication on the grounds raised by the

petitioner, but the grounds are cognizable in a post-conviction suit. See

Porter v. State, 2 Tenn. Crim. App. 437, 455 S.W.2d 159 (1970); Richmond v.

Russell, 2 Tenn. Crim. App. 345, 454 S.W.2d 155 (1970).



    The trial court was authorized to treat this matter as one for

post-conviction relief. The judgments entered by the trial court, if illegal, are

voidable as opposed to being void. See State v. Burkhart, 566 S.W.2d 871

(Tenn. 1978); Henderson v. State, 220 Tenn. 520, 419 S.W.2d 176 (1967).

The writ of habeas corpus will not "lie to liberate a person imprisoned under a

voidable judgment as opposed to one which is void." State v. Henderson, 640

S.W.2d 56, 57 (Tenn. Crim. App. 1982).




    The resolution of this matter is controlled by Henderson v. State, supra.

In Henderson the defendant committed a robbery with a deadly weapon while

on parole for a previous conviction. The parties entered into a plea bargain



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agreement. It was agreed that the defendant would plead guilty to simple

robbery, the maximum sentence would be five (5) years, and the sentence

would be served concurrently with the previous sentence. Later, the

appellant challenged the validity of his conviction on the ground the sentence

was illegal. It was conceded that the trial court was powerless to order that

the sentences would be served concurrently as the applicable statute

mandated that the sentences must be served consecutively. The trial court

set aside the conviction following an evidentiary hearing. The State appealed

the judgment. In affirming the judgment of the trial court, the Supreme Court

said:


     After having thought about the matter, heard able arguments, read
   the record and authorities, we agree that the trial judge was correct in
   his ruling herein.

          ******

      Here, there was no official misrepresentation. The argument is made
   as to what they thought would happen, and it just was not right. When
   it appears that this is true the accused should be allowed to withdraw
   his plea.

        220 Tenn. at 525, 419 S.W.2d at 178, 179.



    Upon remand the appellant shall be given the opportunity to amend his

pleadings with the guiding hand of counsel. Thereafter, the trial court shall

conduct an evidentiary hearing on the grounds raised in the appellant's

pleadings.




                                   _____________________________
                                   Charles Lee, Special Judge




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CONCUR:



____________________________
Paul G. Summers, Judge



____________________________
Joseph M. Tipton, Judge




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