Robert Moore vs.State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 15, 1998
• Docket: 01C01-9712-CC-00580
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

ROB ERT S . MOO RE, AT NASHVILLE

) FILED ) Appe llant, ) April 15, 1998 C.C.A. NO. 01C01-9712-CC-00580 ) (No. 1614 Below) VS. ) Cecil W. Crowson ) Appellate Court Clerk MAURY COUNTY STATE OF TENNESSEE, ) ) The Hon. Jim T. Hamilton Appe llee. ) ) (Denial of Motion to Va cate) ) 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. The petitioner objects to the state’s motion. After reviewing the

pleadings and the record on appeal, this Court finds that the trial court properly dismissed

the petitioner’s Motion to Vacate Count III of Original Indictment and grants the state’s motion

to affirm the judgment pursuant to Rule 20.

In 1982, the petitioner was indicted for first-degree murder, assault with the

intent to commit another first-degree m urder, and the use of a firearm in the commission of

a felony. Th e petition er was convicte d of all three counts. His convictions were upheld by

this Court in State v. Robert Moore, No. 84-160-III (Tenn. Crim. App., at Nashville, Feb. 15,

1985), perm. to app. denied, (Tenn. Apr. 29, 1985). Subsequently, this Court upheld the

denial of the petitioner’s first post-conviction petition in Robert S. Moore v. State, No. 87-174-

III (Tenn. C rim. App ., at Nash ville, Aug. 1 0, 1988 ), perm. to app. denied, (Tenn. Dec. 5,

1988). The dismissal of the petitioner’s second post-conviction petition was upheld in Robert

S. Moore v. State, No. 01C01-9001-CC-00017 (Tenn. Crim. App., at Nashville, May 16,

1990 ), perm. to app. denied, (Tenn. July 30, 1990).

In his motion to vacate, the petitioner argued that the trial court should dismiss

the indictment and vacate his conviction for possession of a firearm in the comm ission of a

felony on the grounds that the offense was not presented in the indictment under the

applica ble statute, his conviction for possession of a firearm violated double jeopardy, that

possession of a firearm does not constitute a separate offense, and that he should not have

received consecutive sentences. On appeal, the petitioner also contends that the trial judge had the authority to reopen the case under the 1995 Post-Conviction Act. He also argues

that the judge should have recused himself in this matter because he was the original trial

judge.

In denying relief, the trial judge entered an order stating “[t]his Court has no

author ity to reope n this case, and therefore the petition must be and is here [sic] by

dismiss ed.”

Initially, we no te that ther e is no statutory provisio n for the f iling of a m otion to

vacate a judgment that is over ten years old. Gen erally, a trial co urt is witho ut autho rity to

vacate or amend a judgment o nce it has becom e final as in this case . See State v. Lock,

839 S.W.2d 436, 440 (Tenn. Crim. App. 1992). If the motion to vacate was considered as

a petition for post-conviction relief, it wou ld be outside the statute of limitations. T.C.A. § 40-

30-202; see also, Carter v . State, 952 S.W.2d 417 (Tenn. 1997). Moreover, if the motion

was treated as a motion to reopen the petitioner’s post-conviction petition, none of the

petitioner’s claims meet the criteria for granting such relief as set forth in T.C.A. § 40-30-

217(a ).

IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed

pursuant to Rule 2 0, Tenn essee Court o f Crimin al Appe als Rule s. The pe titioner being

indigent, costs are taxed to the state.

ENTER, this the ____ day of April, 1998.

_____________________________ JERRY L. SMITH, JUDGE

CONCUR:

_____________________________ JOHN H. PEAY, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE

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