         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs March 8, 2005

     EDWIN MATTHEW BRYANT v. FLORA J. HOLLAND, WARDEN

                     Appeal from the Criminal Court for Davidson County
                               No. 3438   Steve Dozier, Judge



                      No. M2003-02838-CCA-R3-HC - Filed April 7, 2005


The petitioner, Edwin Matthew Bryant, appeals pro se from the Davidson County Criminal Court’s
dismissal of his petition for habeas corpus relief from his convictions for two counts of vehicular
assault, a Class D felony, and resulting sentences of four years each to be served concurrently in the
Department of Correction. He contends that the trial court erred in dismissing his writ of habeas
corpus without appointing counsel and that his sentences are illegal because the trial court sentenced
him to incarceration and imposed restitution and because the trial court enhanced each of his
sentences from two years to four years without finding any applicable enhancement factors. We
affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Edwin Matthew Bryant, Pro Se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. (Torry) Johnson, III, District Attorney General; Pamela Sue Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The record reflects that on October 3, 2001, the petitioner, pursuant to a plea agreement, pled
guilty to two counts of vehicular assault. See T.C.A. § 39-13-106. The agreement provided that the
petitioner would receive two four-year sentences to be served concurrently and that the question of
manner of service would be left for determination by the trial court. At the sentencing hearing, the
court ordered the sentences to be served in confinement and ordered the petitioner to pay restitution
in the amount of $5,195.95. The petitioner subsequently filed a petition for the writ of habeas corpus
alleging that he was illegally constrained of his freedom, and the trial court summarily dismissed it.
On appeal, the petitioner contends that the trial court erred by summarily dismissing his petition
without appointing him counsel and that his sentences are illegal. He cites State v. Davis, 940
S.W.2d 558 (Tenn. 1997), for the proposition that a sentence involving both incarceration and
restitution is illegal. He also contends that his sentence is illegal because the trial court enhanced
his sentence without first finding applicable enhancement factors. The state contends that the trial
court properly dismissed the petition and that Davis is distinguishable from the instant case based
upon a change in law. The state, however, does not address the petitioner’s contention that his
sentence is illegal because of improper enhancement. We hold that the trial court’s summary
dismissal of the petition for writ of habeas corpus was proper because the petitioner has failed to
state a claim.

        The trial court may summarily dismiss a petition for writ of habeas corpus relief when the
petitioner does not state a cognizable claim. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.
App. 1994). A petition for the writ of habeas corpus may only be brought if the judgment is void
or the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). However, if the
claimed illegality renders the judgment or sentence voidable, rather than void, no relief can be
granted. Id. at 161. “If the face of the record shows that the court did not have jurisdiction, then the
judgment is void.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The determination of
whether relief should be granted is a question of law which this court reviews de novo. Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000).

        The petitioner argues that Davis requires granting his petition for habeas corpus relief. In
Davis, our supreme court held that under the Sentencing Act of 1989, “there is no authority under
which courts may impose restitution as a part of a sentence of incarceration.” Davis, 940 S.W.2d
at 962. However, the court also recognized

               that, effective July 1, 1996, Tenn. Code. Ann. § 40-35-104(c)(2) was
               amended to include the following sentencing alternative: “Payment
               of restitution to the victim or victims either alone or in addition to any
               other sentence authorized by this subsection.” This statutory
               authorization for restitution as a sentencing alternative was not
               available at the time of the appellant’s sentencing, and it does not,
               therefore, affect our holding in this opinion.

Id. n.6.

       The legislature’s change to the Sentencing Act allowing for incarceration and restitution
occurred in 1996. Although the record before us does not reflect the date when the offenses
occurred, only that he was convicted in October 2001, the petitioner has failed to allege why the
1996 law does not apply to his sentence. He is not entitled to relief on this issue.

        Regarding the enhancement of the petitioner’s sentences from two years to four years, the
record reflects that the petitioner agreed to the four-year terms in his plea agreement. A sentence of
four years is within the range authorized by statute for a Range I, standard offender. See T.C.A. §


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40-35-111, -112. This issue is without merit. Because the petitioner’s petition for habeas corpus
relief fails to state a claim, we hold the trial court did not err in summarily dismissing it.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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