        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 18, 2011

                MICHELLE TIPTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                          No. 4263   Monte Watkins, Judge


               No. M2011-00190-CCA-R3-HC - Filed December 13, 2011


The Petitioner, Michelle Tipton, appeals the Davidson County Criminal Court’s denial of her
petition for habeas corpus relief from her 2000 conviction for first degree felony murder and
resulting life sentence. She claims her conviction is void because (1) the judgment fails to
identify the date of her indictment, (2) the judgment lists a non-existent offense, (3) the
judgment fails to list her release eligibility percentage, (4) the same aggravating circumstance
was used during the guilt and sentencing phases of the trial, (5) the State violated statutory
sentencing guidelines, and (6) the judgment rendered a non-existent sentence. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

Michelle Tipton, Nashville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; Victor
S. Johnson, III, District Attorney General; and Steven Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

         The Petitioner was convicted on July 31, 2003, by a Sevier County Circuit Court jury
of first degree felony murder and second degree murder. The jury sentenced the Petitioner
to life imprisonment for first degree felony murder and the trial court merged the Petitioner’s
conviction for second degree murder into her conviction for first degree felony murder. On
direct appeal, this court affirmed the conviction and sentence for first degree felony murder
but reversed and dismissed the conviction for second degree murder. State v. Michelle
Tipton, No. E2004-01278-CCA-R3-CD, Sevier County (Tenn. Crim. App. Aug. 22, 2005),
perm. app. denied (Tenn. Jan. 30, 2006). The Petitioner filed a petition for post-conviction
relief claiming she did not receive the effective assistance of counsel. The trial court denied
the petition, and this court affirmed the denial. Michelle Tipton v. State, No.
E2009-00236-CCA-R3-PC, Sevier County (Tenn. Crim. App. Jan. 6, 2010), perm. app.
denied (Tenn. May 20, 2010). On July 16, 2010, the Petitioner filed a petition for writ of
habeas corpus alleging that her judgment of conviction was void and illegal. The trial court
found that the Petitioner failed to demonstrate that the judgment was void or illegal and
denied the petition. This appeal followed.

       In Tennessee, habeas corpus relief is available only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993). The purpose of the habeas corpus petition is to contest a void, not merely a voidable,
judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1969). A void,
as opposed to a voidable, judgment is “one that is facially invalid because the court did not
have the statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251,
256 (Tenn. 2007). A voidable judgment “is one that is facially valid and requires proof
beyond the face of the record or judgment to establish its invalidity.” Id. at 255-56. The
burden is on the petitioner to establish that the judgment is void or that the sentence has
expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).

                                               I

        The Petitioner contends that her conviction is void because the judgment fails to
identify the date she was indicted for her offenses. She argues that the date is necessary to
support the basis for the conviction and sentence because the original indictments were
amended to include aggravating circumstances. The State contends that the indictment filing
date is not a mandatory provision of the uniform judgment document and that omission of
the date is not of jurisdictional magnitude. We agree with the State.

        “There are nineteen categories of information which must be contained in every
judgment document, most of which relate to a defendant’s sentence.” State v. Stephens, 264
S.W.3d 719, 728 (Tenn. Crim. App. 2007) (citing T.C.A. § 40-35-209(e)). The indictment
filing date is not a requirement for a valid judgment. See T.C.A. § 40-35-209(e) (2000)
(amended 2009).

       The Petitioner cites no authority to support her argument that the judgment is rendered
void due to its omission of the indictment filing date. Tennessee Code Annotated section 40-
35-209(e) does not require the date to be listed on the judgment. We hold that the Petitioner

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has not established that the judgment is void on the basis that the date the indictment was
filed was not included. The Petitioner is not entitled to relief.

                                             II

        The Petitioner contends that her conviction is void because the judgment lists her
conviction offense as “Murder Perpetration of Robbery.” She argues that this is not a felony
offense listed by our statutes, does not mirror the first degree murder offense stated on the
indictment, and does not satisfy the mandatory requirements of Tennessee Code Annotated
section 40-35-209(e). The State contends that the judgment lists a proper abbreviation of
first degree murder committed in the perpetration of a robbery and that the abbreviation
indicates the type of offense and thus satisfies the requirements of Tennessee Code
Annotated section 40-35-209(e). We agree with the State.

       A judgment must list the “type of offense for which the defendant was charged and
convicted.” T.C.A. § 40-35-209(e)(1)(A). Here, the judgment states that the Petitioner was
convicted of “Murder Perpetration of Robbery,” while the indictment states that the
Petitioner “unlawfully and feloniously kill[ed] Pamela Sue Hale during the perpetration or
while attempting to perpetrate a robbery, in violation of T.C.A. 39-13-202 . . . .” Although
the judgment does not use the exact language used in the indictment or in the first degree
murder statute, it sufficiently describes the type of offense for which the Petitioner was
charged and convicted. The Petitioner cites no authority to support her argument that the
judgment is rendered void due to its failure to use the exact statutory language when listing
the offense. We hold that the Petitioner has not established that the judgment is void. The
Petitioner is not entitled to relief.

                                             III

       The Petitioner contends that her conviction is void because the judgment fails to list
her release eligibility percentage. The State contends that the judgment for the first degree
felony murder conviction correctly notes under the release eligibility section that the
conviction was for first degree murder and that although the second degree murder judgment
does not list release eligibility, no sentence was imposed on that conviction because it was
merged into the first degree murder conviction. We hold that the Petitioner has not
established that the judgment for first degree felony murder is void.

        Effective July 1, 1995, a defendant convicted of first degree murder must serve 100%
of his or her sentence, less sentence credits earned and retained equaling no more than 15%
of the sentence imposed. T.C.A. § 40-35-501(i) (2000) (amended 2001, 2006, 2007, 2009,



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2010). A judgment must state if a defendant was “sentenced as a one hundred percent
(100%) offender pursuant to § 40-35-501(i).” T.C.A. § 40-35-209(e)(1)(G).

       The judgment for the Petitioner’s first degree felony murder conviction correctly notes
under the release eligibility section that the conviction was for first degree murder. Although
the judgment for the second degree murder conviction does not indicate a release eligibility,
that conviction was merged into the first degree murder conviction and no individual
sentence was imposed. Furthermore, the Petitioner is no longer confined due to the second
degree murder conviction, which was reversed and dismissed on direct appeal. We hold that
the Petitioner has not established that the judgment for first degree felony murder is void.
The Petitioner is not entitled to relief.

                                              IV

       The Petitioner contends that her conviction is void because the same aggravating
circumstance, that the murder was committed during a robbery, was used during the guilt and
sentencing phases of the trial. The State contends that the Petitioner is not entitled to relief
because she was sentenced to life imprisonment, a sentence that does not require aggravating
circumstances, and the erroneous application of sentencing factors do not render a judgment
void. We hold that the Petitioner has not established that the use of the same aggravating
circumstance during the guilt and sentencing phases of the trial rendered the judgment void.

         The felony murder aggravating circumstance can be used to enhance a life sentence
to life without the possibility of parole when a defendant is convicted of felony murder. State
v. Butler, 980 S.W.2d 359, 363 (Tenn. 1998). The felony murder aggravating circumstance
may not be used to impose the death penalty when a defendant is convicted of first degree
murder solely on the basis of felony murder. See State v. Middlebrooks, 840 S.W.2d 317,
346 (Tenn. 1992). Aggravating circumstances are not required to sentence a defendant to life
imprisonment. T.C.A. § 39-13-204(f) (2000) (amended 2002, 2008, 2009, 2010, 2011).

        The jury found the felony murder aggravating circumstance applicable and could have
sentenced the Petitioner to life imprisonment without the possibility of parole, but instead
sentenced the Petitioner to life imprisonment, a sentence not requiring the application of an
aggravating circumstance. Furthermore, there is no restriction on using the felony murder
aggravating circumstance to enhance a life sentence when a defendant is convicted of felony
murder. See Butler, 980 S.W.2d at 363. We hold that the Petitioner has not established that
the use of the same aggravating circumstance during the guilt and sentencing phases of the
trial rendered the judgment void. The Petitioner is not entitled to relief.




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                                               V

       The Petitioner contends that her conviction is void because the State violated statutory
sentencing guidelines governing first degree murder by failing to file written notice of its
intention to seek life imprisonment without the possibility of parole, as required by
Tennessee Code Annotated section 39-13-208, and failing to file a motion to exclude or
withdraw the death penalty. The State contends that it was not required to file a motion to
exclude or withdraw the death penalty and that notice obligations are procedural matters that
do not affect the trial court’s jurisdiction. We agree with the State.

        “Where a capital offense is charged in the indictment or presentment and the district
attorney general intends to ask for the sentence of imprisonment for life without possibility
of parole, written notice shall be filed not less than thirty (30) days prior to trial.” T.C.A. §
39-13-208(b) (2010). Written notice that the State intends to seek the death penalty also
constitutes notice that the State intends to seek a sentence of life imprisonment without the
possibility of parole as a possible punishment. T.C.A. § 39-13-208(a). If notice is not filed,
the trial court shall sentence a defendant found guilty of first degree murder to life
imprisonment. T.C.A. § 39-13-208(c).

        The record reflects that the State filed a notice of intent to seek the death penalty on
January 18, 2002, which also constituted notice that the State intended to seek life
imprisonment without the possibility of parole. An order issued by the trial court on July 15,
2003, states that the State withdrew its notice of intent to seek the death penalty. Although
the record does not contain a motion to withdraw notice of intent to seek the death penalty,
no such requirement is found in the statutes or rules governing first degree murder
sentencing. See T.C.A. §§ 39-13-202, -204, -208; Tenn. R. Crim. P. 12.3(b). Furthermore,
a trial court does not lose jurisdiction if a notice is not filed, but instead is required to
sentence a defendant found guilty of first degree murder to life imprisonment. See T.C.A.
§ 39-13-208(c). Although proper notice was filed and an aggravating circumstance was
found applicable, the jury sentenced the Petitioner to life imprisonment. We hold that the
Petitioner has not established that the judgment is rendered void due to the failure of the State
to file an individual notice of its intent to seek life imprisonment without the possibility of
parole, in addition to a previously filed notice of intent to seek the death penalty, or a motion
to withdraw its intention to seek the death penalty. The Petitioner is not entitled to relief.

                                               VI

       The Petitioner contends that her conviction is void because the judgment rendered a
non-existent sentence. She argues that because she is not eligible for parole until she has
served at least fifty-one years, she has effectually been denied an opportunity for parole and

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her sentence is thus illegal and void. The State contends that the Petitioner’s sentence and
release eligibility are established by statute and are not void. We agree with the State.

        Sentencing is jurisdictional and must be done in compliance with the sentencing act.
McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000). A trial court lacks jurisdiction to
impose a sentence that is not authorized by the applicable statute or that is in direct
contravention of the statute. See Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). As
noted above, effective July 1, 1995, a defendant convicted of first degree murder must serve
100% of his or her sentence, less sentence credits earned and retained equaling no more than
15% of the sentence imposed. T.C.A. § 40-35-501(i). Thus, a defendant convicted of first
degree murder and sentenced to life must serve at least fifty-one years before becoming
eligible for parole and, depending upon the age of the defendant, could have the same
effective sentence as life without parole.

        Although the Petitioner will not be eligible for parole until she is seventy-seven years
old, this does not render her sentence illegal or void. The Petitioner received a valid sentence
under our sentencing laws. The Petitioner has not established that her life sentence has
expired or that the trial court was without jurisdiction to convict and sentence her. The
Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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