IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
BARRY WELLS, )
) NO. 02C01-9610-CV-00358
Appellant, )
) LAUDERDALE COUNTY
VS.
RONNIE RICKARD,
FILED )
)
)
HON. JOSEPH H. WALKER, III,
JUDGE
November 20, 1998)
Appellee. ) (Habeas Corpus)
Cecil Crowson, Jr.
Appellate C ourt Clerk
UPON REMAND FROM THE SUPREME COURT OF TENNESSEE
FOR THE APPELLANT: FOR THE APPELLEE:
ROBERT L. HUTTON JOHN KNOX WALKUP
One Commerce Sq., Ste. 1700 Attorney General and Reporter
Memphis, TN 38103
ELLEN H. POLLACK
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ELIZABETH T. RICE
District Attorney General
MARK E. DAVIDSON
Assistant District Attorney General
302 E. Market Street
Somerville, TN 38068
OPINION FILED: ______________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
This case is before this Court upon a remand from the Supreme Court of
Tennessee in light of its decision in City of White House v. Whitley, ___ S.W. 2d
___, No. 01S01-9711-CH-00259 (Tenn. October 12, 1998). We must determine
whether a judgment of conviction punishable by incarceration which was imposed
by a non-lawyer judge without objection by the defendant is void if the judgment was
entered prior to the Supreme Court’s opinion in White House. We conclude such
a conviction is not void; therefore, it may not be attacked by habeas corpus. In this
case, however, the petitioner was granted relief by the trial court as to a probation
revocation order by a non-lawyer judge due to the absence of waiver of counsel.
Thus, although we do not void the original judgment of conviction, we affirm the trial
court’s order of remand to the General Sessions Court for a new revocation hearing.
PROCEDURAL HISTORY
This Court originally affirmed the authority of the non-lawyer General
Sessions judge to order the incarceration of the petitioner. See Barry Wells v.
Ronnie Rickard, C.C.A. No. 02C01-9610-CV-00358, Lauderdale County (Tenn.
Crim. App. filed June 9, 1997, at Jackson). The Supreme Court of Tennessee
granted permission to appeal and on November 2, 1998, remanded the matter to
this Court for reconsideration in light of City of White House v. Whitley, supra.
FACTS
Petitioner, Barry Wells, appeared before the non-lawyer General Sessions
judge of Lauderdale County on the charge of theft under $500.00, a Class A
misdemeanor. He waived his right to counsel and trial by jury and was found guilty
by the non-lawyer judge. He received a sentence of 11 months and 29 days with
all but 30 days being suspended.
2
Subsequently, petitioner appeared before the same non-lawyer judge on a
probation violation warrant. Although the petitioner was not advised of his right to
counsel and counsel was not appointed to represent him, the non-lawyer judge
revoked probation and ordered the defendant to serve the balance of his sentence.
Petitioner subsequently filed a habeas corpus action in the Circuit Court. The
Circuit Court ordered a remand to the General Sessions Court for a new hearing
due to the absence of a waiver of the right to counsel. Petitioner appealed to this
Court alleging the Circuit Court erred in failing to declare that the non-lawyer
General Sessions judge had no authority to order incarceration.
DISPOSITION
In City of White House v. Whitley, ___ S.W.2d at ___, the Supreme Court of
Tennessee ruled that a non-lawyer judge cannot preside over trials of criminal
offenses punishable by incarceration in the absence of a written waiver by the
defendant consistent with Tenn. R. Crim. P. 5(c). The Court found such to be in
violation of due process under Article I, § 8 of the Tennessee Constitution. The
Court further announced the ruling was only applicable to (1) cases tried or retried
after the date of its opinion, and (2) cases on appeal in which the due process issue
was raised in the trial court and preserved as a ground for appeal. Id.
In this case the due process issue was not raised in the General Sessions
Court nor in the Circuit Court on appeal. It was raised for the first time via habeas
corpus. Habeas corpus relief is available only when the judgment is void as
opposed to voidable. See Dykes v. Compton, ___ S.W.2d ___, ___ (Tenn. 1998);
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
In White House the Supreme Court declared that its ruling only applied to
cases tried or retried after the filing of its opinion and to cases on appeal in which
the due process issue was properly raised and preserved. White House, ___
S.W.2d at ___. Thus, convictions entered by non-lawyer judges prior to White
House are not void; otherwise, all such convictions would be subject to habeas
3
corpus attack even after the filing of White House.
In the case sub judice the judgment of conviction by the non-lawyer judge
was not void. It could not be attacked by habeas corpus. For this reason, the
original judgment of conviction should not be set aside.
Nevertheless, petitioner was accorded some relief by the trial court. The trial
court set aside the probation revocation order due to the absence of waiver of
counsel. We see no reason to disturb this ruling.1
CONCLUSION
Based upon the foregoing, we affirm the judgment of the trial court. The
matter shall be remanded to the General Sessions Court for a new revocation
hearing. 2
____________________________
JOE G. RILEY, JUDGE
CONCUR:
_______________________________
JOHN H. PEAY, JUDGE
1
We note that the present General Sessions judge of Lauderdale County is a lawyer-
judge.
2
The original opinion in this Court was authored by Presiding Judge Joe B. Jones.
Judge Jones is now deceased; therefore, only two judges participated in the present opinion.
4