Opinion
No. 03C01-9510-CC-00307.
June 28, 1996.
CARTER COUNTY, HON. LYNN W. BROWN, JUDGE, (Habeas Corpus).
FOR THE APPELLANT:
David Andrew Harvey, Pro Se.
FOR THE APPELLEE:
Charles W. Burson, Attorney General and Reporter, Eugene J. Honea, Assistant Atty. Gen. Reporter, David E. Crockett, District Attorney General.
AFFIRMED
OPINION
The appellant, David Andrew Harvey, appeals as of right from the dismissal by the Carter County Criminal Court of his petition for a writ of habeas corpus.
Upon entering pleas of guilty in November 1991, the appellant was convicted of second degree murder and especially aggravated robbery.
In his pro se petition for habeas corpus relief, filed April 27, 1995, the appellant alleged that his conviction for especially aggravated robbery violated the double jeopardy clause of the Constitution of the United States because the offense arose out of the same criminal episode as that resulting in the murder conviction. The trial court dismissed the petition sua sponte for failure to state a claim upon which relief could be granted.
We agree with the trial court. Habeas corpus relief is available only when it appears on the face of the judgment that a conviction is void or when the petitioner's term of imprisonment has expired. Tenn. Code Ann. § 29-21-101 (1980 Repl.); State v. Archer, 851 S.W.2d 157, 164 (Tenn. 1993). Even if there were merit to the appellant's claim of double jeopardy, such a claim renders the conviction voidable, not void. William A. Ransom v. State, No. 01C01-9410-CR-00361 (Tenn.Crim.App., at Nashville, September 20, 1995) perm. to app. denied (Tenn. 1996); Dewayne Haynes v. State, No. 03C01-9402-CR-00054 (Tenn.Crim.App., at Knoxville, May 25, 1995) perm. to app. denied (Tenn. 1995). It is well settled that where a judgment is not void, but is merely voidable, such judgment may not be collaterally attacked in a suit for habeas corpus relief. State v. Archer, 851 S.W.2d at 163 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn.Crim.App. 1994). We, therefore, hold that because the appellant has not alleged that he is being held upon an expired sentence or that the judgments against him are void, the trial court properly dismissed the petition.
We note that the trial court could have treated the habeas corpus petition as a post-conviction relief petition. Tenn. Code Ann. § 40-30-108 (1990 Repl.). However, the record in this case clearly shows that the three-year statute of limitation applicable to a petition for post-conviction relief pursuant to Tennessee Code Annotated section 40-30-102 had expired. Therefore, the trial court's dismissal of the petition without considering it as one for post-conviction relief was entirely proper. See Fredrick v. State, 906 S.W.2d 927 (Tenn.Crim.App. 1993).
Accordingly, the judgment is affirmed.
_______________________________________________ WILLIAM M. BARKER, JUDGE
CONCUR:
_______________________________________________________________ GARY R. WADE, JUDGE
______________________________________________________________ DAVID H. WELLES, JUDGE