Belk v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1997 SESSION
December 23, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
BRUCE BELK, )
)
APPELLANT, )
) No. 03-C-01-9703-CR-00109
)
) Morgan County
v. )
) E. Eugene Eblen, Judge
)
) (Habeas Corpus)
CHARLES JONES, WARDEN )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Robert N. Meeks John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 8086 500 Charlotte Avenue
Chattanooga, TN 37414 Nashville, TN 37243-0497
Michael J. Fahey, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles E. Hawk
District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
Frank A. Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763-0703
OPINION FILED:____________________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Bruce Belk1 (petitioner), appeals as of right from a judgment of the
trial court denying his action for habeas corpus relief. He presents one issue for review:
“[T]he charging indictment failed to contain or state the essential mens rea elements of the
offense as required by T.C.A. 40-13-202, thus rendering appellant’s subsequent conviction
and plea agreement void.” After a thorough review of the record, the briefs submitted by
the parties, and the law governing the issue presented for review, it is the opinion of this
court that the judgment of the trial court should be affirmed.
The remedy sought by the petitioner, habeas corpus, was not available to him. The
Hamilton County judgment is not void for the reasons outlined in the petition for the writ
of habeas corpus. When the court rendering the judgment in question has jurisdiction of
the defendant’s person, jurisdiction of the subject matter (the crime), and has the authority
to make the challenged judgment, the judgment is voidable, not void. Passarella v. State,
891 S.W.2d 619, 627 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). Thus, the only
remedy available to the petitioner was post-conviction relief.
This court parenthetically notes that if the petitioner had pursued the post-conviction
remedy, he would not be entitled to relief. The Tennessee Supreme Court recently held
the indictment, found to be defective in State v. Roger Dale Hill, Sr., Wayne County No.
01-C-01-9508-CC-00267, 1996 WL 346941 (Tenn. Crim. App., Nashville, June 20, 1996),
was sufficient to allege the offense of aggravated rape, the same offense alleged in this
case. State v. Hill, _____ S.W.2d _____ (Tenn. 1997). The indictment in this case is
almost identical to the indictment in Hill. They charge the same offense. Thus, the
indictment in this case properly alleged the offense of aggravated rape.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
1
The appellant was indicted under the name “Bruce D. Belk.” “Bruce Belk” and
“Bruce D. Belk” are the same person.
2
CONCUR:
______________________________________
PAUL G. SUMMERS, JUDGE
______________________________________
CURWOOD WITT, JUDGE
3