         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 25, 2005

          THOMAS M. TUCKER v. FLORA J. HOLLAND, WARDEN

                Direct Appeal from the Criminal Court for Davidson County
                          No. 3439 J. Randall Wyatt, Jr., Judge



                   No. M2003-02837-CCA-R3-HC - Filed February 22, 2005


The Petitioner, Thomas M. Tucker, filed a petition for writ of habeas corpus seeking relief from an
allegedly void judgment, which the trial court dismissed without a hearing. On appeal, the Petitioner
contends that the habeas corpus court erred when it dismissed his petition. Finding no error in the
judgment of the habeas corpus court, we affirm its dismissal of the Petitioner’s petition for habeas
corpus relief.

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

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

Thomas M. Tucker, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
and Kathy Morante, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

       The Petitioner pled guilty to vehicular homicide by intoxication, a Class B felony. The trial
court sentenced the Petitioner to ten years and six months in prison, and it ordered him to pay
$11,000 in restitution. The Petitioner filed a petition for writ of habeas corpus, asserting that: (1)
his sentence exceeded the statutory limit of the sentencing court because his sentence of
incarceration was accompanied by an order to pay restitution; and (2) his sentence of ten years and
six months was beyond the sentencing court’s authority. The habeas corpus court summarily
dismissed the petition, and in its order stated:

       The Petitioner brings this action alleging that the convicting court exceeded its
       authority when it sentenced him to the T.D.O.C. (Tennessee Department of
       Corrections) in addition to ordering that he pay restitution. The Petitioner also
       alleges that his sentence of 10 years 6 months exceeds the statutory limit for the
       offenses he was convicted of, and that he should have received the minimum
       sentence in the range to which he pled.

       . . . . The Court does not find from the face of the judgment that the Petitioner’s
       sentence has expired, or that the convicting court was without jurisdiction or
       authority to sentence the Petitioner. The Court is of the opinion that the sentence the
       Petitioner received is within the range allowed by statute for the offenses he
       committed, and is not illegal simply because it is longer than the minimum sentence
       that the convicting court could have ordered.

                The Petitioner cites authority in his memorandum which suggests that
       restitution may not be ordered in addition to a sentence with the T.D.O.C., under
       some scenarios. The Court, however, points out that on July 1, 1996, the legislature
       amended Tenn. Code Ann. § 40-35-104(c)(2) 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.” The Court, therefore, finds that
       the Petitioner’s sentence is not void or illegal simply because the Court ordered
       restitution and confinement with the T.D.O.C.

The Petitioner appeals this judgment of the habeas corpus court.

                                            II. Analysis

        On appeal, the Petitioner contends that the habeas corpus court erred when it dismissed his
petition because: (1) the trial court imposed an illegal sentence upon him; (2) the trial court erred
when it sentenced him above the minimum sentence range; and (3) the trial court improperly ordered
him to pay restitution. Specifically, the Petitioner asserts that the sentence of ten years and six
months is “a[n] indeterminate sentence” and violates Tennessee Code Annotated section 40-35-
211(1).

        Article I, section 15 of the Tennessee Constitution guarantees its citizens the right to seek
habeas corpus relief. In Tennessee, a “person imprisoned or restrained of [his or her] liberty, under
any pretense whatsoever . . . may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment . . . .” Tenn. Code Ann. § 29-21-101 (2000). The grounds upon which habeas corpus
relief will be granted are very narrow. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).
“Unlike the post-conviction petition, the purpose of a habeas corpus petition is to contest void and
not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, in
order to state a cognizable claim for habeas corpus relief, the petition must contest a void judgment.
Id. “A void judgment is one in which the judgment is facially invalid because the court did not have
the statutory authority to render such judgment . . . . A voidable judgment is one which is facially
valid and requires proof beyond the face of the record or judgment to demonstrate its voidableness.”
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing Archer v. State, 851 S.W.2d 157, 161


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(Tenn. 1993)). Thus, 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 sentence of imprisonment or other restraint has expired. Archer, 851 S.W.2d
at 164; Potts, 833 S.W.2d at 62.

        The petitioner bears the burden of showing by a preponderance of the evidence that the
conviction is void or that the prison term has expired. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). Furthermore, the procedural requirements for habeas corpus relief are
mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165. It is permissible for a
trial court to summarily dismiss a petition 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, 891 S.W.2d at 627; Rodney Buford v. State, No.
M1999-00487-CCA-R3-PC, 2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville, July 28,
2000), perm. app. denied (Tenn. Jan. 16, 2001). Because the determination of whether habeas
corpus relief should be granted is a question of law, our review is de novo with no presumption of
correctness. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

        The Petitioner’s first contention is that the trial court sentenced him to an illegal sentence.
The Petitioner asserts that it was illegal for the sentencing court to sentence him to both restitution
and incarceration and that his sentence was “indeterminate.” The Petitioner failed to attach a copy
of his judgment of conviction to his habeas corpus petition. “Without question, the procedural
provisions of the habeas corpus statutes are mandatory and must be followed scrupulously.” Archer
v. State, 851 S.W.2d at 165 (citing Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336, 337 (1946)).
In view of the Petitioner’s failure to comply with the mandatory provisions of section 29-21-107,
summary dismissal of the petition was proper. State ex rel. Allen v. Johnson, 217 Tenn. 28, 394
S.W.2d 652, 653 (1965). Furthermore, the Petitioner pled guilty to, and was sentenced for, vehicular
homicide by intoxication, which is a Class B felony. Tenn. Code Ann. § 39-13-213(a)(2)(B) (2003).
The sentencing range for a Range I offender convicted of a Class B felony is not less than eight years
or more than twelve years. Tenn. Code Ann. § 40-35-112(a)(2) (2003). Thus, a sentence of ten
years and six months is within the range allowed by law. Additionally, Tennessee Code Annotated
section 40-35-105(c)(2) (2003), allows the sentencing court to order the payment of restitution to the
victim in addition to any other authorized sentence. Therefore, the Petitioner is not entitled to relief
based upon an illegal sentence.

        The Petitioner’s second contention is that the trial court erred when it sentenced him to a
sentence above the minimum sentence range. The challenges to the Petitioner’s sentence “are not
grounds cognizable in a habeas corpus proceeding.” James Oliver Ross v. State, No. W2003-00843-
CCA-R3-HC, 2003 WL 23100816, at *2 (Tenn. Crim. App., at Jackson, Dec. 31, 2003), no perm.
app. filed (citing Alonzo Stewart v. State, No. 03C01-9810-CR-00380, 1999 WL 521195, at *1
(Tenn. Crim. App., at Jackson, July 23, 1999), perm. app. denied (Tenn. Nov. 9, 1999)). Further,
the allegation that the sentencing court improperly enhanced the Petitioner’s sentence would render
the judgments voidable, not void. Eddie Williams, Jr. v. David Mills, No. W2003-02353-CCA-R3-
HC, 2004 WL 221297, at *2 (Tenn. Crim. App., at Jackson, Jan. 30, 2004), no perm. app. filed.


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Additionally, because neither the judgments of conviction nor the sentencing transcript are included
in the record, we have no way of discerning what enhancement factors the sentencing court relied
upon when it enhanced the Petitioner’s sentence. Therefore, we conclude that the Petitioner is not
entitled to relief on this issue.

        Finally, the Petitioner contends that the trial court improperly ordered him to pay restitution.
Again, this is not a proper issue to raise in a habeas corpus proceeding. 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 sentence of imprisonment or
other restraint has expired. Archer, 851 S.W.2d at 164; Potts, 833 S.W.2d at 62. The Petitioner is
not entitled to relief on this issue.

                                           III. Conclusion

        In accordance with the foregoing reasoning and authorities, we conclude the Petitioner is not
entitled to a writ of habeas corpus. Accordingly, we affirm the habeas corpus court’s judgment
dismissing his habeas corpus petition.


                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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