         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 23, 2001

             MICHAEL WAYNE DEAN v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Bledsoe County
                            No. 10881     Buddy D. Perry, Judge



                                 No. E2000-01452-CCA-R3-PC
                                        March 21, 2001

The petitioner challenges the trial court’s dismissal of his petition for habeas corpus relief. He
contends that the trial court lacked jurisdiction to enter a judgment for second degree murder because
that offense is not a lesser included offense of felony murder with which he was indicted. We affirm
the trial court’s dismissal of the habeas corpus petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JAMES
CURWOOD WITT, JR., J., joined.

Michael Wayne Dean, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Clinton J. Morgan, Counsel for the State; and
James Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

                                              ORDER

        The petitioner, Michael Wayne Dean, appeals as of right the Bledsoe County Circuit Court’s
dismissal of his petition for habeas corpus relief. He is presently serving a fifteen-year sentence as
a Violent Offender for his September 10, 1999 conviction pursuant to a guilty plea to second degree
murder, a Class A felony. The petitioner contends that the trial court was without jurisdiction or
authority to enter this judgment because second degree murder is not a lesser included offense of his
indicted offense of felony murder. The state contends that the trial court properly dismissed the
petition because the judgment is not void on its face. It notes that the judgment reflects that the
petitioner agreed to the amended charge of second degree murder. We affirm the trial court’s
dismissal of the petition pursuant to Rule 20, Tenn. Ct. Crim. App. R.

         A petition for the writ of habeas corpus may 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). Thus, we examine the judgment
on its face to determine whether it is void. Here, the judgment of conviction states that the petitioner
pled guilty to the amended charge of second degree murder. A defendant may agree to the
amendment of the indictment. Tenn. R. Crim. P. 7(b). Such an agreement remedies any potential
defect in the conviction for second degree murder. See Charles K. Hunter v. Ricky Bell, Warden,
No. 01C01-9807-CR-00316, Davidson County, slip op. at 3 (Tenn. Crim. App. July 9, 1999)
(holding that a judgment reflecting an agreed amendment of attempted first degree murder to
aggravated assault forecloses any argument that aggravated assault is not a lesser included offense
of attempted first degree murder). The judgment is valid upon its face.

        After a full consideration of the record, the briefs, and the law governing the issues presented,
we are of the opinion that the evidence justifies the trial court’s dismissal of the habeas corpus
petition and that no error of law exists that would require a reversal. Therefore, we order that the
judgment of the trial court should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R., and that
the case be remanded to the Circuit Court of Bledsoe County for the execution of judgment and the
collection of costs accrued below. It appearing that the petitioner is indigent, the costs of the appeal
are taxed to the State of Tennessee.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE


                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE


                                                        ____________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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