         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


            SAMUEL K. ROBINSON v. GLEN TURNER, WARDEN

                Direct Appeal from the Circuit Court for Hardeman County
                        No. 05-02-0006 Joe H. Walker, III, Judge



                 No. W2005-00371-CCA-R3-HC - Filed December 29, 2005




       The Petitioner, Samuel K. Robinson, appeals the lower court’s denial of his petition for
habeas corpus relief. The State has filed a motion requesting that this Court affirm the trial court
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any
ground that would render the judgment of conviction void. Accordingly, we affirm the trial court’s
dismissal.


Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES AND JOHN EVERETT
WILLIAMS, JJ. joined.

Samuel K. Robinson, pro se.

Paul G. Summers, Attorney General & Reporter; Brian Clay Johnson, Assistant Attorney General,
for the appellee, the State of Tennessee.



                                 MEMORANDUM OPINION


        The Petitioner Samuel K. Robinson was convicted of ten counts of burglary, six counts of
theft of property and six counts of vandalism. State v. Samuel K. Robinson, No. M1999-00559-
CCA-MR3-PC, 2001 WL 839639, *1 (Tenn. Crim. App., at Nashville, Jul 25, 2001). Pursuant to


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a plea agreement, the Petitioner received an effective sentence of fifteen years to be served on
probation. Id. Three weeks later, probation violation warrants issued against the Petitioner. Id. The
Petitioner represented himself at the hearing, during which he admitted he had violated almost all
of the conditions of probation alleged in the revocation warrant. Id. The trial court revoked
probation and ordered that the Petitioner be incarcerated for the balance of the original sentence. Id.
Petitioner is currently confined at the Hardeman County Correctional Facility in Hardeman County.


         On January 14, 2005, the Petitioner filed a petition for habeas corpus relief. As grounds for
relief, Petitioner alleged that the probation revocation of the Petitioner is void because the trial court
failed to advise the Petitioner of his right to counsel, failed to inquire into the background,
experience or conduct of the Petitioner, failed to authenticate a written waiver and “failed to cause
to waiver to spread upon the minutes of the court.” Next, Petitioner claimed that the trial court “had
no statutory authority to revoke Petitioner’s probation.” Specifically, he asserted that only the trial
judge granting the probation, or his successor, may revoke a defendant’s probation. Finally,
Petitioner complained that the judgments of conviction reflect both a sentence in the Department of
Correction and a sentence of probation. Petitioner contends that these are two distinct sentences that
cannot simultaneously exist on a judgment sheet. The trial court denied relief on January 26, 2005,
finding that the Petitioner’s sentences have not expired and that the court had jurisdiction or
authority to sentence a defendant to the sentence received. A timely notice of appeal document was
filed.

        In this state, the grounds upon which habeas corpus petitions are granted are narrow. Habeas
corpus relief only addresses detentions that result from void judgments or expired sentences. See
Archer, 851 S.W.2d at 164. A judgment is void “only when ‘[i]t 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.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004)
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears
the burden of establishing either a void judgment or an illegal confinement by a preponderance of
the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner
carries this burden, he is entitled to immediate relief. However, where the allegations in a petition
for writ of habeas corpus do not demonstrate that the judgment is void, a trial court may correctly
dismiss the petition without a hearing. McLaney v. Bell, 59 S.W.3d 90, 93 (Tenn. 2001) (citing
T.C.A. § 29-21-109 (2000); see, e.g., Archer, 851 S.W.2d at 164 (parenthetical omitted)). The
Petitioner does not contend that his sentences have expired, thus, he is only entitled to relief if his
judgments are void.

        First, the Petitioner alleges that the judgment revoking his probation is void because he did
not effectively waive his right to counsel at the probation revocation hearing. This is not a proper
ground for habeas corpus relief as even if these claims were true, the allegations would merely render
the judgments voidable, not void.



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        Next, the Petitioner contends that he is entitled to relief because the judge at the revocation
hearing is not the judge who originally imposed sentence. In support of this argument, Petitioner
relies upon this Court’s decision in State v. Duke, 902 S.W.2d 424, 426 (Tenn. Crim. App.1995)
(appellate court vacated the revocation order and remanded case to trial court for determination of
whether sentencing judge was unavailable when second judge conducted revocation proceeding).
The Duke decision was based upon the former version of Tennessee Code Annotated section 40-35-
311(b), which provided that when a probation revocation proceeding is commenced, "the trial judge
granting such probation and suspension of sentence, or his successor, shall ... determine whether a
violation has occurred." Duke, 902 S.W.2d at 426. This provision was amended by the legislature,
however, in 1997 by adding the following language: "[T]he trial judge granting such probation and
suspension of sentence, the trial judge's successor, or any judge of equal jurisdiction who is
requested by such granting trial judge to do so shall ... determine whether or not a violation has
occurred." See T.C.A. § 40-35-311(b)(1997). See Cox v. State, 53 S.W.3d 287, 295 (Tenn. Crim.
App. 2001), overruled on other grounds by, Moody v. State, 160 S.W.3d 512, 516 (Tenn. 2005). The
Petitioner’s probation was revoked in March 1998, well after the 1997 amendment took effect.
Moreover, had there been an anomaly in meeting the statutory dictates on this point, it would not
have rendered void the revocation order. See State v. Billy Gene Oden, Jr., No. 01C01-9710-CC-
00468, 1998 WL 840007 (Tenn. Crim. App., at Nashville, Dec. 7, 1998) (apparent failure to comply
with the request provisions of the 1997 version of section 40-35-311(b) created no opportunity to
avoid the revocation when the defendant acquiesced in the substitution of judges and made no
contemporaneous objection). Thus, the substitution of judges in the present case provides no basis
for habeas corpus relief.

         Finally, the Petitioner complains that the judgments are void as they illegally reference both
a Tennessee Department of Correction Sentence and a sentence to probation. As asserted by the
State, it appears that the Petitioner is referring to the original judgments of conviction. The original
judgment forms reflect the sentencing court’s intent to suspend service of the entire Department of
Correction sentence and that the Petitioner would serve the entire sentence on supervised probation.
A technical error in the judgment form, if any, does not entitled the Petitioner to habeas corpus relief.
See John Haws Burrell v. Howard Carlton, Warden, No. E2004-01700-CCA-R3-HC, 2005 WL
544732, *1 (Tenn. Crim. App., at Knoxville, Mar. 8, 2005).


       The trial court properly determined that the Petitioner was not entitled to habeas corpus relief.
Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.




                                                         ___________________________________
                                                                             J.C. MCLIN, JUDGE



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