State vs. Michael South
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED OCTOBER 1997 SESSION October 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk MICHAEL R. SOUTH, Appellant, V. BILLY COMPTON, WARDEN, Appellee. ) C.C.A. No. 02C01-9610-CC-00325 ) ) Lake County ) ) Honorable Joe G. Riley, Jr., Judge ) ) ) (Habeas Corpus-Aggravated Rape) ) FOR THE APPELLANT: FOR THE APPELLEE: Michael R. South, Pro se Route 1, Box 330 Tiptonville, TN 38079-9775 John Knox Walkup Attorney General & Reporter Kenneth W. Rucker Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-4351 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024 OPINION FILED: ___________________ AFFIRMED PAUL G. SUMMERS, Judge OPINION The appellant, Michael R. South, pled guilty to aggravated rape. He was sentenced to twenty years incarceration in the Tennessee Department of Correction. He, thereafter, filed a petition for habeas corpus relief. In his petition he alleged that the indictment against him was insufficient for failing to allege a mens rea. He contends his conviction is void. The trial court dismissed the petition finding that it was not proper for habeas corpus review. The trial court based this finding on the fact that the appellant s conviction was not void on its face and that his sentence had not expired. He appeals this dismissal. Upon review, we affirm. The appellant contends that the indictment against him did not sufficiently allege the mens rea for aggravated rape.1 The appellant bases his theory on State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App., at Nashville, filed June 20, 1996). We note that several panels of this Court have refused to follow Hill and that it is currently pending review by the Tennessee Supreme Court.2 In Tennessee an indictment must (1) inform the defendant of the precise charges; (2) enable the trial court to enter an appropriate judgment and sentence upon conviction; and (3) protect the defendant against double jeopardy. State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). It must be stated in ordinary and concise language so that a person of common understanding will know what is intended. Warden v. State, 381 S.W.2d 244 (Tenn. 1964). The majority of this panel declines to follow Hill. We find that the appellant s indictment sufficiently alleged the elements of aggravated rape and was constitutionally sound. He was fully apprised of the charges against him in ordinary and concise language. The appellant s indictment gave the convicting 1 The indictm ent against the appe llant stated that he: did unlaw fully and coerciv ely, while armed with a w eapon, to wit: a knife, sex ually penetrate [the vic tim], in violation of T enn. Code An n. ยง 39-13-502. 2 For exam ple, State v. Wilson, No. 03C01-9511-CC-00355 (Tenn. Crim. App. at Knoxville, filed Mar. 25, 199 7); State v. Burrell , No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxville, filed Feb. 11, 1997). -2- court an adequate basis for subject matter jurisdiction. Therefore, the appellant s conviction is not void and is improper for habeas corpus review. Accordingly, we find no error of law mandating reversal. The judgment of the trial court is affirmed. __________________________ PAUL G. SUMMERS, Judge CONCUR: __________________________ JOHN H. PEAY, Judge __________________________ DAVID G. HAYES, Judge -3-
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