Judgment Was Affirmed By This Court on Appeal. See David Stovall v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 29, 1999
• Docket: M1999-00937-CCA-R3-PC
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE

FILED December 29, 1999

Cecil Crowson, Jr. Appellate Court Clerk DAVID STOVALL, ) ) C.C.A. NO. M1999- 00937-CCA-R3-PC Appellant, ) (No. 7482 Below) ) MAURY COU NTY VS. ) ) The Hon. Jim T. Hamilton STATE OF TENNESSEE, ) ) (Dismissal of Post-Conviction Petition) Appellee. ) ) AFFIRMED PURSUANT TO RULE 20

ORDER

This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Having reviewed the petitioner’s brief, the state’s motion, and the

record on appeal, the Court finds that the motion is well taken.

On January 6, 1992, the petitioner pled guilty to one count of aggravate d robbery,

two counts of aggravated kidnapping, two counts of aggravated rape, and two counts of

aggravated assault, and he received an effective sentence of 35 years in the Tennessee

Department of Correction. Thereafter, on August 19, 1992, the petitioner filed a petition for

post-conviction relief. The trial court dismissed the petition on January 11, 1994, and the

judgment was affirmed by this Court on appeal. See David Stovall v. State, No. 01C01-9401-

CC-00022 (Tenn. Crim . App., at Na shville, Jan. 5, 1 995). No ap plication for permission to

appeal was filed with the Supreme Court.

Subsequently, on January 2 5, 1999, the petitioner filed a “Motion fo r Delayed

Appeal,” which was denied by the trial court on August 11, 1999. Th e petitioner no w appeals

the trial court’s ruling. Specifically, he contends that he is entitled to a delayed application for

permission to appeal to th e Suprem e Court bec ause post- conviction counsel failed to file an

application for permission to appeal pursuant to T.R.A.P. 11 and failed to withdraw as counsel

pursuant to T.R.A.P. 14.

As pointed out by the state, a delayed appeal may be granted under T.C.A. § 40-30-213 when a petitioner has been denied his right to appeal from his original conviction.

See Rule 28, § 9(D). The statute does not allow for delayed appeals from the denial of post-

conviction relief. Moreover, the 1995 Post-Conviction Procedure Act does not contemplate the

filing of successive petitions. The filing of only one petition for post-conviction relief attacking

a single judgment is contemplated by T.C.A. § 40-30-202(c). Finally, the petitioner was not

entitled to effective assistance of counsel in a post-conviction proceeding. House v. State, 911

S.W.2d 705 (Tenn. 1995).

Accordingly, this Court finds that the state’s m otion to aff irm the ju dgmen t should

be granted.

IT IS, THEREFORE, ORDERED that the state’s motion to affirm the judgment

of the trial cou rt under Rule 20, Tenne ssee Cou rt of Crim inal Appeals Rules, is granted, and

the judgm ent of the tria l court is affirmed. It appearing that the petitioner is indigent, costs of

these proceedings are taxed to the state.

_____________________________ JERRY L. SMITH, JUDGE

CONCUR:

_____________________________ JOHN H. PEAY, JUDGE

_____________________________ DAVID H. WELLES, JUDGE

-2-