         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 17, 2000

              KENNETH LEE WESTON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Morgan County
                             No. 8601    E. Eugene Eblen, Judge



                                  No. E1999-02095-CCA-R3-CO
                                       November 27, 2000

The Defendant, Kenneth Lee Weston, appeals as of right from the summary dismissal of his petition
for writ of habeas corpus. He asserts that his convictions are void because the trial judge did not sign
the court minutes reflecting the judgment. We hold that the failure of the trial judge to sign the court
minutes does not render a judgment of conviction void. Accordingly, we affirm the judgment of the
trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., and
WILLIAM B. ACREE, JR., SP .J., joined.

Joe H. Walker, Harriman, Tennessee, for the appellant, Kenneth Weston.

Paul G. Summers, Attorney General and Reporter; R. Stephen Jobe, Assistant Attorney General; and
J. Scott McCluen, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

       The Defendant was convicted of robbery with a deadly weapon and being a habitual criminal,
and he was sentenced to life imprisonment. We upheld his convictions on direct appeal, and the
supreme court denied review. See State v. Kenneth Lee Weston, No. 1235, 1989 WL 139693 (Tenn.
Crim. App., Knoxville, Nov. 20, 1989), perm. app. denied (Tenn. Mar. 5, 1990). On July 6, 1999,
the Defendant filed a petition for writ of habeas corpus, in which he asserted that his convictions
were void because the trial judge failed to sign the "conviction hearing papers." The trial court
summarily dismissed his petition on October 25, 1999, stating,

       Specifically, the Court notes that Petitioner does not maintain that his sentence has
       expired but rather seeks to attack the validity of the conviction against him, alleging
       that the original Judgment against him was not signed by the Trial Judge. It is the
       burden of the Petitioner to establish a void Judgment by a preponderance of the
         evidence and Petitioner has failed to do so herein. He has submitted only a copy of
         the "Abstract of the Judgment" against him, that being a document signed only by the
         Clerk for the purpose of entering the Judgment. He has failed to establish his claim
         that the Judgment against him is void by providing a copy of said Judgment or
         otherwise.

On appeal, the Defendant concedes that the judgment was in fact signed by the trial judge, but he
argues that his convictions are void because the trial judge did not sign the court minutes.1

        Habeas corpus relief is available only when a judgment is void or a sentence has expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). If the allegations in the petition for habeas
corpus relief fail to sate a cognizable claim, the trial court may summarily dismiss the petition.
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). The burden is on the defendant
to establish by a preponderance of the evidence that the judgment is void or that his or her term of
imprisonment has expired. Id.

        The Defendant urges us to conclude that if the trial judge failed to sign the minutes of the
court, the judgment against him is void. He directs our attention to Tennessee Code Annotated
section 16-1-106(a), which provides as follows:

         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 the judge's signature appears, it shall be sufficient
         for the judge to sign at the end of the minute book approving all the minutes in the
         book.

He also relies upon Howard v. State, 399 S.W.2d 738 (Tenn. 1966), in which our supreme court
observed,

         With all due respect to what has heretofore been said by this Court on the subject
         now before us, we are constrained to the view that so important a judicial function
         as authenticating the minutes of a Court of Record is not permissibly to be either
         lightly treated or ignored. Any other rule appears to be fraught with so much of
         potential mistake, mischief, and even evil doing, as to demonstrate such to be
         impermissible.




         1
          The court minutes were not presented to the trial court, and they are not included in the record on appeal. The
only evidence o f court minutes presented to this Court is an affidavit by defense counsel asserting that he looked at the
minutes and that they are not sig ned. Bec ause this evide nce was no t presented to the trial court, we make no findings
and reach no c onclusions a bout wheth er the court m inutes were actually signed. Our decision is based solely on our
conclusion that the Defen dant failed to sta te a claim for ha beas corp us relief.

                                                           -2-
Id. at 740-41. The Defendant argues that Howard mandates the signing of the court minutes by the
trial judge and that the failure to do so renders a judgment void.

        We have recently had the opportunity to consider the Defendant's precise issue, and we held
that the lack of the trial judge's signature on the court minutes does not render a judgment void. See
Jerry L. Johns v. State, No. E1999-00260-CCA-R3-CD, 2000 WL 262901, at *2 (Tenn. Crim. App.,
Knoxville, Mar. 9, 2000), perm. app. denied (Tenn. Sept. 11, 2000); Paul A. Mayes v. State, No.
E1999-01374-CCA-R3-CD, 2000 WL 215675, at *2 (Tenn. Crim. App., Knoxville, Feb. 24, 2000),
perm. app. denied (Tenn. Sept. 11, 2000); Willie James Robinson, NO. E1999-00-45-CCA-R3-PC,
2000 WL 1228023, at *2 (Tenn. Crim. App., Knoxville, Aug. 30, 2000); see also Jack P. Carr v.
David Mills, Warden, No. E2000-00156-CCA-R3-PC, 2000 WL 1520267, at *2 (Tenn. Crim. App.,
Knoxville, Oct. 13, 2000) (holding that the failure of the trial judge to sign the mittimus or the
original judgment would not render the judgment void). In so doing, we commented that our
supreme court has previously "concluded that the statutory provision for the trial judge signing the
minutes is directory rather than mandatory and that the failure to sign the minutes does not invalidate
a judgment." Jerry L. Johns, 2000 WL 262901, at *2 (citing DuBoise v. State, 290 S.W.2d 646, 647
(Tenn. 1956)). While acknowledging the supreme court's statements in Howard, which are relied
upon by the Defendant, we noted, "Howard does not stand for the proposition that a failure to sign
the minutes renders a judgment void." Id.; see also Howard, 399 S.W.2d at 740 ("It is true that this
[statute] has repeatedly been construed as being directory, rather than mandatory."). We thus held
that the trial court properly denied habeas corpus relief. Jerry L. Johns, 2000 WL 262901, at *2.

        Applying this precedent, we conclude that any failure on the part of the trial judge to sign the
court minutes would not render the judgment void. Accordingly, the Defendant failed to establish
grounds for habeas corpus relief, and the trial court properly dismissed his petition. The judgment
of the trial court is affirmed.



                                                        ___________________________________
                                                        DAVID H. WELLES, JUDGE




                                                  -3-
