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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
CHARLES SPEED v. KEVIN MYERS, WARDEN, STATE OF TENNESSEE
Appeal from the Circuit Court for Wayne County No. 13341 Jim T. Hamilton, Judge

No.M2004-00764-CCA-R3-HC - Filed November 15, 2004

This matter is before the Court upon the State's motion to affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner has appealed the trial court's order summarily dismissing the petition for the writ of habeas corpus. In that petition the petitioner alleges that the indictment charging the petitioner with one count of felony murder and one count of first degree murder is void because the counts therein fail to allege sufficient facts to vest jurisdiction in the trial court. Upon a review of the record in this case we are persuaded that the trial court was correct in summarily dismissing the habeas corpus petition and that this case meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, the State's motion is granted and the judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed. JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and ROBERT W. WEDEMEYER, JJ., joined. Charles Speed, pro se, Clifton, Tennessee. Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General, for the appellee, State of Tennessee.

MEMORANDUM OPINION On September 19, 1994, the petitioner was indicted on one count of felony murder and one count of first degree murder. The petitioner pled guilty to one count of second degree murder and agreed to be sentenced as a range II multiple offender. He was sentenced to serve forty (40) years. In a habeas corpus petition, the petitioner challenges the indictments as void for failing to specify the facts that constituted the offense. He also argues that the trial court erred in failing to appoint counsel for the petition.

A writ of habeas corpus is available only when it appears on the face of the judgment or the record that the convicting court was without jurisdiction to convict or sentence the defendant or that the defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). However, if after a review of the habeas petitioner's filings the trial court determines that the petitioner would not be entitled to relief, then the petition may be summarily dismissed. Tenn. Code Ann.

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