TYRE v. COMPTON

Full title: MARK LEE TYRE, APPELLANT, v. BILLY COMPTON, WARDEN, APPELLEE

Court: Court of Criminal Appeals of Tennessee. at Jackson

Date published: Nov 20, 1997

No. 02-C-01-9702-CC-00057 (Tenn. Crim. App. Nov. 20, 1997)

Opinion

No. 02-C-01-9702-CC-00057.

November 20, 1997.

Lake County, J. Steven Stafford, Judge, (Habeas Corpus).

AFFIRMED PURSUANT TO RULE 20

FOR THE APPELLANT:

Mark Lee Tyre, Pro Se.

FOR THE APPELLEE:

John Knox Walkup, Attorney General Reporter, Elizabeth T. Ryan, Assistant Attorney General, C. Phillip Bivens, District Attorney General.

OPINION FILED: __________________________________

JONES, Presiding Judge

OPINION

The appellant, Mark Lee Tyre (petitioner), appeals as of right from a judgment of he trial court summarily dismissing his action for habeas corpus relief. The trial court held the petitioner is not entitled to habeas corpus relief because his sentences have not expired, and the judgments entered in his case are not void upon the face of the judgments. The petitioner contends he is entitled to maintain an action for habeas corpus to contest the validity of the indictments based upon this court's decision in State v. Roger Dale Hill, Sr., Wayne County No. 01-C-01-9508-CC-00267 (Tenn.Crim.App., Nashville, June 20, 1996). He argues the two counts of the indictment in question failed to set forth the requisite mens rea.

It has long been established that the remedy of habeas corpus is limited in scope as well as relief. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn.Crim.App.), per. app. denied (Tenn. 1994). In criminal cases, the remedy is available if (a) the judgment is void or (b) the sentence has expired. Passarella, 891 S.W.2d at 626. If the petition fails to establish one of these grounds for relief, the trial court may dismiss the action without an evidentiary hearing. Passarella, 891 S.W.2d at 827.

In this case, the grounds for relief are cognizable in a post-conviction action, not an action for habeas corpus. Therefore, the trial court properly summarily dismissed the action for post-conviction for relief. Given these circumstances, this court is of the opinion the judgment of the trial court should be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.

_____________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ JERRY L. SMITH, JUDGE

______________________________________ CURWOOD WITT, JUDGE