         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


CHARLES SPEED v. KEVIN MYERS, WARDEN, STATE OF TENNESSEE

                       Appeal from the Circuit Court for Wayne County
                            No. 13341 Jim T. Hamilton, Judge



                   No.M2004-00764-CCA-R3-HC - Filed November 15, 2004


This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by
memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner
has appealed the trial court’s order summarily dismissing the petition for the writ of habeas corpus.
In that petition the petitioner alleges that the indictment charging the petitioner with one count of
felony murder and one count of first degree murder is void because the counts therein fail to allege
sufficient facts to vest jurisdiction in the trial court. Upon a review of the record in this case we are
persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that
this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal
Appeals. Accordingly, the State’s motion is granted and the judgment of the trial court is affirmed.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and ROBERT W.
WEDEMEYER, JJ., joined.

Charles Speed, pro se, Clifton, Tennessee.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General, for
the appellee, State of Tennessee.


                                   MEMORANDUM OPINION

        On September 19, 1994, the petitioner was indicted on one count of felony murder and one
count of first degree murder. The petitioner pled guilty to one count of second degree murder and
agreed to be sentenced as a range II multiple offender. He was sentenced to serve forty (40) years.
In a habeas corpus petition, the petitioner challenges the indictments as void for failing to specify
the facts that constituted the offense. He also argues that the trial court erred in failing to appoint
counsel for the petition.
         A writ of habeas corpus is available only when it appears on the face of the judgment or the
record that the convicting court was without jurisdiction to convict or sentence the defendant or that
the defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851 S.W.2d
157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). However, if after a review
of the habeas petitioner’s filings the trial court determines that the petitioner would not be entitled
to relief, then the petition may be summarily dismissed. Tenn. Code Ann. § 29-21-109; State ex rel.
Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964). Further, a trial court may summarily dismiss a
petition for writ of habeas corpus without the appointment of a lawyer and without an evidentiary
hearing if there is nothing on the face of the judgment to indicate that the convictions addressed
therein are void. Passarella v. State, 891 S.W.2d 619, (Tenn. Crim. App. 1994), superceded by
statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at
*1 n.2 (Tenn. Crim. App. at Jackson, Mar. 11, 1998).

        A valid indictment is essential to vest jurisdiction in the convicting court, and therefore an
indictment that is so defective that it fails to invest jurisdiction may be challenged in a habeas corpus
proceeding. State v. Wyatt, 24 S.W.3d 319, 320-23 (Tenn. 2000). In the case herein, the indictments
about which the petitioner complains are attached to the habeas corpus proceedings and are in the
record on appeal. Each count therein names the appellant as the accused, the date of the offense, the
actus reus, mens rea of each offense, and each count references the statutes defining the charged
offenses. Given these circumstances, it is clear that each count in this indictment is sufficient to vest
jurisdiction in the convicting court. See State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); State v.
Carter, 988 S.W.2d 145, 158 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998); State
v. Hill, 854 S.W.2d 725, 728 (Tenn. 1997). Thus, the trial court was correct in summarily
dismissing the petitioner’s habeas corpus petition.

        Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

                 The Court, with the concurrence of all judges participating in the case, when
        an opinion would have no precedential value, may affirm the judgment or action of
        the trial court by memorandum opinion rather than by formal opinion, when:

                The judgment is rendered or the action taken in a proceeding before
                the trial judge without a jury, and such judgment or action is not a
                determination of guilt, and the evidence does not preponderate against
                the finding of the trial judge. . . .

        We determine that this case meets the criteria of the above-quoted rule and therefore we grant
the State’s motion filed under Rule 20 and we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE



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