Gary Green v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
October 28, 1998
Cecil W. Crowson
GARY L. GREEN, * Appellate Court Clerk
# 01C01-9709-CR-00393
Appellant, * DAVIDSON COUNTY
VS. * Hon. Thomas H. Shriver, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
*
For Appellant: For Appellee:
Gary L. Green, Pro Se John Knox Walkup
# 149575 Attorney General & Reporter
CCA/SCCC
P.O. Box 279 Elizabeth B. Marney
Clifton, TN 38425 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243-0493
Mary Hausman
Assistant District Attorney General
Washington Square
Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
On August 15, 1996, the petitioner, Gary L. Green, was convicted of
especially aggravated kidnapping. He received a Range II, thirty-year sentence.
State v. Gary L. Green, No. 01C01-9706-CR-00207, slip op. at 2 (Tenn. Crim. App.,
at Nashville, Apr. 9, 1998), application to appeal filed, (May 27, 1998). On July 18,
1997, he filed this petition for post-conviction relief claiming the indictment was
defective and that his counsel was ineffective. Several days later, the trial court
entered an order dismissing the petition for failure to state a claim for relief.
On appeal, the petitioner contends the trial court erred by dismissing
his petition without the appointment of counsel, the opportunity to amend, or an
evidentiary hearing. For grounds other than those stated by the trial court, we affirm
the dismissal.
The petitioner's case was on direct appeal when this petition for post-
conviction relief was filed. On April 9, 1998, this court affirmed the especially
aggravated kidnapping conviction and on May 27, 1998, the petitioner filed a pro se
Rule 11 application for permission to appeal to the supreme court. Id. The Rule 11
application is still pending.
A petition for post-conviction relief may not be maintained while a
direct appeal of the same conviction is pending. Jones v. State, 453 S.W.2d 433(Tenn. Crim. App. 1970). The new Post-Conviction Procedure Act provides that a
petition may be filed "within one (1) year of the date of the final action of the highest
state appellate court to which an appeal is taken." Tenn. Code Ann. § 40-30-202(a).
On the date this petition was dismissed, this court had not ruled on the petitioner's
direct appeal. Thus, the petition was filed prematurely.
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In Jones, our court explained the rationale for not allowing
consideration of a petition for post-conviction relief while the direct appeal is
pending:
It is generally held that whenever a court has acquired
jurisdiction of a case, no other court may ... interfere with
its action in matters concerning which it has acquired
jurisdiction. For example, if an appellate court has
acquired jurisdiction by virtue of an appeal from a
judgment of conviction, no other court may discharge the
defendant during the pendency of the appeal. That is to
say, a court has no power to grant [relief] pending an
appeal to another court from a conviction in a criminal
prosecution.
453 S.W.2d at 434 (quoting 39 Am.Jur.2d., Habeas Corpus, § 107).
This court has applied the rationale of Jones to petitions filed after the
passage of the new Act. David McClain v. State, No. 02C01-9608-CR-00308, slip
op. at 2 (Tenn. Crim. App., at Jackson, Nov. 6, 1997). Because the petition was
filed prematurely, the dismissal is without prejudice. The petitioner shall have one
year from the final action of our state supreme court within which to file a petition for
post-conviction relief. See id.
__________________________________
Gary R. Wade, Presiding Judge
CONCUR:
_________________________________
Thomas T. W oodall, Judge
_________________________________
Curwood Witt, Judge
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