IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 16, 2001 Session
CHARLES WILLIAM YOUNG v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 12722 Charles Lee, Judge
No. M2000-02007-CCA-MR3-PC - Filed September 27, 2002
The appellant, Charles WilliamYoung, was convicted in a jury trial of the offense of theft
over $500. He was sentenced to one year and six months and ordered to serve 60 days of
incarceration, to pay a $500 fine and restitution of $800. The appellant’s probation was revoked for
the first time in 1997, but he was again placed on probation for 18 months. Two years later his
probation was again revoked and the appellant was ordered to serve his original sentence with 94
days of jail credit. He subsequently filed a petition for post-conviction relief, or in the alternative,
a writ of habeas corpus and alleged inter alia that a number of alleged constitutional errors occurred
at both probation revocation hearings. The trial court summarily dismissed the petition.
We hold that the Post-Conviction Procedures Act, Tennessee Code Annotated Section 40-30-
201, et seq., does not provide a cause of action for a collateral attack on a probation revocation
proceeding. Moreover, the appellant’s allegations, taken as true, would at most render the results
of the probation revocation proceedings voidable, not void, and therefore the writ of habeas corpus
is not available to the appellant. The judgment of the trial court is therefore affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
JERRY L. SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID H.
WELLES, JJ., joined.
William J. Eledge, Lawrenceburg, Tennessee, for the appellant, Charles William Young.
Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Mike McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General for the appellee, State of Tennessee.
OPINION
The appellant has presented this Court with an appeal from the denial of a post-
conviction/habeas corpus proceeding which collaterally attacks on constitutional grounds, two
probation revocation proceedings that ultimately resulted in the appellant being ordered to serve his
original eighteen-month sentence in confinement. This Court ordered that the parties address the
question of whether a post-conviction proceeding may be utilized to attack collaterally alleged
constitutional deprivations occurring at a probation revocation hearing.
The appellant maintains that the Post-Conviction Procedure Act, Tennessee Code Annotated
Section 40-30-201, et seq., is an appropriate vehicle for a collateral attack on probation revocation
proceedings. The appellant then goes on to raise seven alleged constitutional violations concerning
either and/or both of his probation revocation proceedings. The State initially agreed that post-
conviction proceedings were available to attack a probation revocation proceeding, but the State
maintained that the issues raised in the instant case did not merit relief. Subsequently, with the
permission of this Court, the State withdrew its original brief and filed one arguing that the Post-
Conviction Procedures Act does not contemplate a probation revocation as a proceeding subject to
attack under the act. The State further maintains that because this is so the appellant’s remaining
issues may not be considered by this Court.
Scope of the Post-Conviction Procedures Act
Section 40-30-203 of the Post-Conviction Procedures Act provides:
Relief under this part shall be granted when the conviction or
sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the
United States.
(emphasis supplied)
Thus, under the act, the subject of the collateral attack must either be the conviction itself or
the sentence. It is clear that the appellant in the instant case is not attacking his conviction. Rather,
as noted above, he is complaining of alleged constitutional violations that he asserts render the order
revoking probation void or voidable.
Therefore, the question in this case is whether an order revoking probation and mandating
that the sentence originally imposed be carried out is a “sentence” itself subject to collateral attack
under the post-conviction act. This appears to be a question of first impression in this state. For the
following reasons, we hold that such an order is not a “sentence” subject to collateral attack under
the provisions of the Tennessee Post-Conviction Procedures Act.
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Suspended Sentence and Probation
Eligibility of a criminal defendant for suspension of sentence and probation is governed by
Tennessee Code Annotated Section 40-35-303. Subsection (c) of that statute provides:
If the court determines that a period of probation is
appropriate, the court shall sentence the defendant to a specific
sentence but shall suspend the execution of all or part thereof and
place the defendant on supervised of unsupervised probation either
immediately or after a period of confinement for a period of time no
less than the minimum sentence allowed under the classification and
up to and including the statutory maximum time for the class of the
conviction offense.
It thus appears that the “sentence” a criminal defendant receives is the period of time that the
defendant could be incarcerated. In contrast, an order revoking suspension of sentence or probation
typically ends the period of suspension of the execution of the original term and mandates that the
original sentence be carried out. See Tenn. Code Ann. § 40-35-310, 311. But it cannot be said that
the order revoking suspension of sentence and probation imposes a new sentence subject to collateral
attack under the Tennessee Post-Conviction Procedures Act. Accord, O’Haren v. State, 927 S.W.2d
447, 451 (Mo. Ct. App. 1996) (holding that language in Missouri court rule similar to that in Sec.
40-30-203 does not allow for post-conviction attack on probation revocation).
The Tennessee Supreme Court case of Van Tran v. State, 6 S.W.3d 257 (Tenn. 1999);
although not directly on point to the issue here, is nevertheless, instructive. In Van Tran, the
supreme court was faced with the issue of what is the appropriate procedural mechanism in a capital
case to raise the question of the defendant’s competence at the time of his impending execution.1
The Court established a new procedure for determining competency to be executed finding that the
Post-Conviction Act did not contemplate such a proceeding. The Court stated:
Post-Conviction relief is granted when a prisoner’s conviction
or sentence is void or voidable because of the abridgment of any right
guaranteed by the Tennessee or United States Constitution. See
Tenn. Code Ann. § 40-30-203 (1997). As the trial court in this case
recognized, the fact that a petitioner’s present mental condition bars
execution does not render the prisoner’s conviction or sentence void
1
The United S tates Suprem e Co urt held in Ford v. W ainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d
335 (1986); that the Eighth Amendm ent to the United States Constitution pro hibits the execution of the mentally
incom peten t.
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or voidable. Instead it simply prevents the State from carrying out the
sentence until the prisoner’s competence is restored. A prisoner’s
competency to be executed is a question independent of the validity
of trial and sentencing, and as such, not within the contemplation of
the Act.
Furthermore, the one-year statute of limitations for actions
under the Post-Conviction Act, see Tenn. Code Ann. § 40-30-202(a)
(1997), indicates that the General Assembly did not contemplate that
post-conviction relief would be available in this circumstance. The
issue of competency to be executed may arise long after the one-year
statute has expired and, in fact, is generally not considered ripe until
execution is imminent.
Id. at 263. ((citation omitted) (emphasis supplied))
Similarly, the question of the validity of a proceeding to revoke suspension of sentence and
probation is independent of the validity of trial and sentencing. Also like competence, the issue of
the validity of a revocation proceeding may often arise long after the running of the one-year statute
of limitation for post-conviction attack on the conviction and original sentence. A separate time
table for collateral attack on revocation proceedings would also mean the filing of more than one
post-conviction proceeding with respect to a single prosecution a situation the General Assembly
clearly sought to avoid. See Tenn. Code Ann. § 40-30-202(c). (This part contemplates the filing of
only one (1) petition for post-conviction relief.)
It is true that this Court has in the past entertained on the merits post-conviction proceedings
arising out of probation revocation cases. See, e.g., Massey v. State, 929 S.W.2d 399 (Tenn. Crim.
App. 1996); State v. Samuel K. Robinson, No. M1999-00559-CCA-MR3-PC, 2001 WL 839639
(Tenn. Crim. App. July 25, 2001); Richard Janak v. Charles Jones, Warden, et. al, No. 01C01-9609-
CC-00390, 1997 WL 576491 (Tenn. Crim. App. Sept. 18, 1997); Richard Kiser v. State, No. 01C01-
9503-CC-00071-00082, 1995 WL 715510 (Tenn. Crim. App. Dec. 6, 1995). In these cases however
the question of whether the Post-Conviction Act applied to probation revocation was not addressed
by the parties or the Court. These cases therefore do not stand for a contrary position to that
announced by the Court today.
We therefore hold that the Tennessee Post-Conviction Procedures Act does not permit the
filing of a petition under its provisions to attack collaterally the validity of a proceeding to revoke
the suspension of sentence and/or probation. The trial court therefore correctly dismissed the
petition for post-conviction relief in this case and that judgment is affirmed.
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Writ of Habeas Corpus
The petition is this case is alternatively styled as a petition for the writ of habeas corpus.
Habeas Corpus review is governed in Tennessee by Tennessee Code Annotated Section 29-21-101.
Unfortunately for the appellant herein that act permits collateral attacks only when it appears from
the face of the judgment or the record of the proceedings that a trial court was without jurisdiction
to sentence a defendant or that a sentence of imprisonment or other restraint has expired. Wyatt v.
State, 24 S.W.3d 319 (Tenn. 2000).
Neither of these scenarios is presented in this case. The judgments revoking probation appear
valid on their face. This Court does not have a transcript of the probation revocation proceedings
before us and we must therefore presume the actions of the trial judge to be correct. See State v.
Oody, 823 S.W.2d 554 (Tenn. Crim. App. 1991). Therefore, the trial court also properly dismissed
the petition in so far as it might be considered a petition for the writ of habeas corpus.
Conclusion
In light of the foregoing the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
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