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,
) C.C.A. No. 02C01-9610-CC-00325
Appellant, )
) Lake County
V. )
) Honorable Joe G. Riley, Jr., Judge
)
BILLY COMPTON, WARDEN, )
) (Habeas Corpus-Aggravated Rape)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Michael R. South, Pro se John Knox Walkup
Route 1, Box 330 Attorney General & Reporter
Tiptonville, TN 38079-9775
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. §
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-