Petition. See State v. Joseph Clyde Beard, Jr., No. 03C01-9502-Cr-000044

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 30, 1997
• Docket: 01C01-9603-CC-00092
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION, 1997 September 30, 1997

Cecil W. Crowson JOE GLASGOW, JR., ) Appellate Court Clerk C.C.A. NO. 01C01-9603-CC-00092 ) Appellant, ) ) DAVIDSON COUNTY ) V. ) ) HON. WALTER C. KURTZ, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-CONVICTION)

SEPARATE OPINION CONCURRING IN PART AND DISSENTING IN PART

I concur with Parts I and III of Judge Tipton’s opinion. However, I

must respectfully dissent from Part II of the opinion.

The trial court was correct in holding that any issue regarding the

merits of the search issue or the effectiveness of Petitioner’s trial counsel has

been previously determined. This fact was acknowledged by the m ajority

opinion. However, as I understand the majority opinion, Petitioner is still entitled

to again raise these issues by alleging ineffective assistance of counsel who

represented Petitioner in the motion for new trial hearing. Defendant pursued a

course of action which this court has previously observed to be unwise; he chose

to allege ineffective assistance of counsel at trial in his motion for new trial and

in his direct appeal, rather than waiting to file that claim in his first post-conviction

petition. See State v. Joseph Clyde Beard, Jr., No. 03C01-9502-CR-000044,

Sullivan County (Tenn. Crim. App., Knoxville, Sept. 26, 1996); Kirby George Wallace v. State, No. 01C01-9308-CC-00275, Stewart County (Tenn. Crim. App.,

Nashville, Sept. 15, 1994); State v. Jimmy L. Sluder, No. 1236, Knox County

(Tenn. Crim. App., Knoxville, March 14, 1990).

The Petitioner was given a full opportunity to be heard on the search

issue and the issue of ineffective assistance of counsel at his trial. He was

afforded the opportunity to present evidence and argum ent, and the trial court

determined that the issues were meritless, and this was affirmed upon review in

this court. Thus the ultimate issues, the ineffective assistance of counsel during

the trial and the search issue, have been previously determined. See House v.

State, 911 S.W .2d 705, 710-11 (Tenn. 1995).

I would affirm the judgment of the trial court dismissing the petition

for post-conviction relief except insofar as the judgment in State v. Joe Glasgow,

Jr., No. 01-C-01-9102-CC-00082, Davidson County (Tenn. Crim. App. Oct. 10,

1991) is vacated and reinstated upon date of the filing of the opinion of this court,

in order to afford the Petitioner the opportunity to file for application for

perm ission to appeal to the supreme court.

____________________________________ THOMAS T. W OODALL, Judge

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