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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

BILLY W. MAY, Petitioner, vs. STATE OF TENNESSEE, Respondent.

) ) ) C. C. A. NO. 02C01-9611-CC-00397 ) ) LAKE COUNTY ) ) No. 96-7550 Feb. 24, 1997 ) ) Cecil Crowson, Jr.

FILED
Appellate Court Clerk

ORDER

This matter is before the Court upon the state's motion to affirm the judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The case before this Court represents an appeal from the trial court's denial of the petitioner's petition for writ of habeas corpus. The record was filed on November 12, 1996, and the petitioner filed his brief on November 19, 1996. The petitioner was originally indicted for robbery with a deadly weapon in November 1987, and the petitioner pled guilty to the same in December 1987. In the present appeal, the petitioner, relying in part upon State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. June 20, 1996), contends the judgment entered against him is void because the indictment failed to allege the mens rea of the offense charged.

Having reviewed the state's motion in light of the petitioner's response and the entire record on appeal, we conclude that the motion is well-taken and should be granted. The trial judge dismissed the petitioner's petition stating that "allegations concerning the sufficiency of the indictment are not subject to habeas corpus relief." It is well established that challenges to the sufficiency of an indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn. Crim. App. 1969). A panel of this Court recently held the same in a capital case. Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).

Nonetheless, we have considered the substance of the petitioner's claim and determine it to be without merit. Hill represents a direct appeal from a case involving an indictment rendered subsequent to the 1989 revisions to the Criminal Code. Conversely, the appeal in the present case stems from a denial of a petition for writ of habeas corpus and involves an indictment issued prior to the 1989 changes in the Code. The opinion in Hill was based upon this Court's interpretation of T.C.A.

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