         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


               CLIFFORD L. TAYLOR v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. M-27335, P-27702 J.C. McLin, Judge



                    No. W2003-02198-CCA-R3-PC - Filed March 11, 2005




The Appellant, Clifford L. Taylor, appeals the trial court's denial of his motion for arrest of
judgment. The State has filed a motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition is not proper as
either a motion in arrest of judgment, petition for post-conviction relief, or application for writ of
habeas corpus relief. Accordingly, we grant the State's motion and affirm the judgment of the lower
court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Clifford L. Taylor, pro se.

Paul G. Summers, Attorney General & Reporter; Michelle C. McIntire, Assistant Attorney General,
for the appellee, the State of Tennessee.


                                  MEMORANDUM OPINION


        In 1980, the Appellant, Clifford L. Taylor, was convicted of two counts of aggravated
kidnapping and one count of armed robbery. See State v. Taylor, 628 S.W.2d 42, 44 (Tenn. Crim.
App. 1981), perm. to appeal denied, (Tenn. 1982). The trial court imposed a thirty year sentence
for each count of aggravated kidnapping. Id. For the armed robbery conviction, the Appellant was


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sentenced, as a habitual criminal, to life imprisonment. Id. The trial court further ordered that the
aggravated kidnapping charges be served concurrently with each other but consecutive to the
enhanced armed robbery sentence. Id. The three sentences were further ordered to be served
consecutive to a twenty-five-year sentence from a prior conviction for which the Appellant was on
parole when the kidnappings and robbery were committed. Id. This Court affirmed the convictions
and sentences on direct appeal. Id.

        On May 8, 2003, the Appellant filed a motion for arrest of judgment, alleging that the
judgments entered against him are constitutionally void. Specifically, he argued that the indictments
are fatally defective in that the indictments (1) failed to allege all essential elements of the offenses
charged, (2) failed to cite statutory authority for the offenses charged, and (3) charged two offenses
in one indictment. The Appellant additionally complained that the “VERDICT MITTIMUS OF
CONVICTION is constitutionally VOID on its face because the trial judge did not sign off on the
writ in accordance to Tennessee Court Rules. . . .” By order entered August 19, 2003, the trial court
denied the motion. On September 23, 2002, the Appellant filed a “First Amendment to His Motion
in Arrest of Judgment.” The amendment merely incorporated the grounds raised in the original
motion, but also stated reasons for the tolling of the statute of limitation. This amended motion was
denied by the trial court on October 8, 2003.

         The State has filed a motion requesting this Court to affirm the decision of the lower court
pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. The State correctly asserts
that a motion for arrest of judgment must be filed within thirty days of the date the order of the
sentence is entered. See Tenn. R. Crim. P. 34. The Appellant was sentenced in 1980. Accordingly,
the State argues that the motion for arrest of judgment filed “some twenty-three years after his
conviction” was well outside the thirty-day time period for filing such motion. Additionally, the
State argues that the motion, if treated as a petition for post-conviction relief, is barred by the statute
of limitations. See Tenn. Code Ann. § 40-30-102 (2003 Repl.). Finally, the State asserts that, if the
petition is treated as an application for the issuance of a writ of habeas corpus, the petition was not
filed in the proper court. See Tenn. Code Ann. § 29-21-105.

        The State’s position is well-taken. Rule 34, Tennessee Rules of Criminal Procedure,
provides that a motion for arrest of judgment must be filed within thirty days of the date the order
of sentence is entered. The present petition was filed nearly twenty-four years after the sentence was
entered. Similarly, the statute of limitation for filing a petition for post-conviction relief has long
since expired. See Tenn. Code Ann. § 29-21-105. The present motion is barred under either Rule
34, Tennessee Rules of Criminal Procedure, or the Post-Conviction Procedure Act.

        Habeas corpus relief addresses detentions that result from void judgments or expired
sentences. See Archer v. State, 851 S .W.2d 157, 164 (Tenn. 1993). The Appellant in this case does
not argue that his sentence has expired; therefore, he is a candidate for habeas corpus relief only if
the judgment or sentence is void. The procedural requirements for habeas corpus relief are
mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165. The Appellant is
currently incarcerated in Lauderdale County, Tennessee. The present petition, however, was filed


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in Shelby County, Tennessee. Pursuant to Tennessee Code Annotated § 29-21-105, a petition for
writ of habeas corpus must be filed in the court most convenient in point of distance to the applicant,
unless a sufficient reason is stated in the petition for not applying to such court. The Appellant has
failed to offer explanation as to why the petition was not filed in Lauderdale County. Thus, a
petition for habeas corpus relief could be dismissed on this basis alone. Additionally, the Appellant
failed to attach his judgment forms to his petition, a requirement under Tennessee Code Annotated
§ 29-21-107(b)(2). A trial court may similarly dismiss a petition for failure to comply with this
requirement. State ex rel. Wood v. Johnson, 216 Tenn. 531, 393 S.W.2d 135, 136 (Tenn.1965).


        In addition to these omissions, we note that, while the Appellant claims that the indictments
against him were fatally defective, he fails to include these indictments in the appellate record. An
appellant carries the burden of ensuring that the record on appeal conveys a fair, accurate, and
complete account of what has transpired with respect to those issues that are the basis of the appeal.
Tenn. R. App. P. 24(b); see also Thompson v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
The failure to do so results in a waiver of such issues. Id.

        Notwithstanding procedural default and waiver, we acknowledge that, although in most
instances a challenge to the sufficiency of an indictment is not a cognizable claim in a habeas corpus
proceeding, see Haggard v. State, 4 Tenn. Crim. App. 620, 475 S.W.2d 186, 187-88 (Tenn. Crim.
App. 1971); Tenn. R. Crim. P. 12(b)(2) (stating that "[d]efenses and objections based on defects in
the indictment" must be raised prior to trial), the indictment may be challenged if the objection is
based on the failure of the indictment to state an offense. See State v. Nixon, 977 S.W.2d 119 (Tenn.
Crim. App. 1997); see also Willie Tom Ensley v. Howard Carlton, Warden, No. E2002-00878-CCA-
R3-PC, 2002 WL 31375581, at *2 (Tenn. Crim. App., at Knoxville, Oct. 21, 2002), perm. to appeal
denied, (Tenn. Feb. 18, 2003). The rationale is that the resulting conviction is void because there is
no crime before the court. Willie Tom Ensley v. Howard Carlton, Warden, No. E2002-00878-CCA-
R3-PC, 2002 WL 31375581, at *2. Thus, if an invalid indictment fails to properly charge an offense
and, thereby, causes the convicting court to be without jurisdiction, that indictment may be
challenged in a habeas corpus proceeding. Willie Tom Ensley v. Howard Carlton, Warden, No.
E2002-00878-CCA-R3-PC, 2002 WL 31375581, at *2.


         The Appellant alleges that the indictments failed to allege the proper mental state for the
indicted offense of aggravated kidnapping and armed robbery. Although not included in the
appellate record, the Appellant has included the indictments as an attachment to his brief. The
indictments contain the terms “unlawfully” and “feloniously.” Apparently, the Appellant’s position
is that “unlawfully” and “feloniously” are not mental states. Again, the counts contained within the
respective indictments charged that the Appellant did "unlawfully" and "feloniously" commit each
separate crime. This language was sufficient under the law as it existed at the time. See Campbell
v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (an indictment using the words "feloniously" or
"unlawfully" is sufficient). This issue is without merit. The Appellant also contends that the
indictments fail to allege an offense against the State. Each of the indictments specifically states that
the charged offenses were committed “against the peace and dignity of the State of Tennessee.” The

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Appellant’s claim is devoid of merit. Finally, with respect to the indictments, the Appellant
complains that the indictment charging him with both aggravated robbery and being a habitual
offender is defective because both charges appear on a single indictment. The habitual criminal
statutes do not create an independent crime, but define and prescribe a status arising from
circumstances under which the penalty for violating one of the prescribed felonies charged on the
same indictment is increased to life imprisonment. Pearson v. State, 521 S.W.2d 225, 227 (Tenn.
1975) (citations omitted). Furthermore, the statute directed as follows:
        an indictment . . . which charges a person, who is a habitual criminal . . . with the
        commission of any felony specified in [enumerated sections] or a crime for which the
        maximum punishment is death, shall, in order to sustain a conviction of habitual
        criminality, also charge that he is such habitual criminal. Every person so charged
        as being a habitual criminal shall be entitled . . . to . . . a written statement of the
        felonies, prior convictions of which form the basis of the charge of habitual
        criminality. . . .
Tenn. Code Ann. § 40-2803 (Repl. 1975). The indictment complied with the statutory requirements.


        In his final claim, the Appellant alleges that the verdict mittimuses of conviction are
constitutionally void on their face because the trial court did not sign them in violation of Rule 32,
Tennessee Rules of Criminal Procedure. A mittimus is an affidavit to the sheriff or jailer as to the
defendant’s sentence. See Tenn. Code Ann. § 41-4-106. A mittimus serves to direct the jailer or
sheriff as to a prisoner’s commitment or discharge and is kept by the sheriff, or jailer, under the
sheriff’s direction. Id. A mittimus is directory in nature; it is not a judgment and does not require
a judge’s signature. Jack P. Carr v. David Mills, No. E2000-00156-CCA-R3-PC, 2000 WL
1520267, at *2 (Tenn. Crim. App., at Knoxville, Oct. 13, 2000), perm. to appeal denied, (Tenn. Mar.
12, 2001). A lack of the judge’s signature does not render a judgment void. See Jack P. Carr v.
David Mills, No. E2000-00156-CCA-R3-PC, 2000 WL 1520267, at *2; Jerry L. Johns v. State, No.
E1999-00260-CCA-R3-CD, 2000 WL 262901, at *2 (Tenn. Crim. App., at Knoxville, Mar. 9, 2000),
perm. to appeal denied, (Tenn. Sept. 11, 2000). Accordingly, this is not a cognizable claim for
habeas corpus relief.


       The Appellant has failed to establish either that he is entitled to relief pursuant to (1) a
motion for arrest of judgment, (2) the Post-Conviction Procedure Act, or (3) habeas corpus relief.
Accordingly, it is ordered that 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.



                                               ___________________________________
                                               ALAN E. GLENN, JUDGE



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