State v. Lynn Person

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 23, 1998
• Docket: 02C01-9712-CC-00470
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

LYNN BRUCE PERSON, ) FILED ) July 23, 1998 Petitioner, ) C. C. A. NO. 02C01-9712-CC-00470 ) Cecil Crowson, Jr. vs. ) MADISON COUNTY Appellate C ourt Clerk ) STATE OF TENNESSEE, ) No. C-97-96 ) Respondent. )

ORDER

This matter is before the Court upon the state’s motion to affirm the trial

court judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. The

record and the petitioner’s brief have been filed in this case. The petitioner has also

filed a response to the state’s motion.

The petitioner is challenging the indictment and reasonable doubt jury

instruction pertaining to his 1979 conviction and life sentence for felony murder. The

record indicates that the petitioner previously filed two petitions for post-conviction

relief. The first, which was filed in 1980, was dismissed after an evidentiary hearing.

No appeal was taken. The second was summarily dismissed and that dismissal was

affirmed by this Court on appeal. Lynn Bruce Person v. State, No. 02C01-9104-CC-

00063 (Tenn. Crim. App., Nov. 27, 1991). The instant petition is the petitioner’s third.

T.C.A. § 40-30-202(c) provides that no more than one petition for post-

conviction relief may be filed attacking a single judgment, and mandates that the trial

court shall summarily dismiss any second or subsequent petition if a prior petition was

filed and resolved on the merits by a court of competent jurisdiction. Since the

petitioner previously filed at least one petition that was resolved on the merits by the

trial court, the petitioner's present petition was properly dismissed. Additionally, after

reviewing the entire record on appeal, we find that the petitioner’s claims do not fall within one of the limited circumstances under which a prior petition may be re-opened.

See T.C.A. § 40-30-217 (the petitioner fails to cite a recent “ruling of the highest state

appellate court or the United States supreme court establishing a constitutional right

that was not recognized as existing at the time of trial”).

Accordingly, we conclude that the trial court did not err in summarily

dismissing the petitioner’s third petition for post-conviction relief. It is, therefore,

ORDERED that the state’s motion is granted and the judgment of the trial court is

hereby affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. It

appearing the petitioner is indigent, costs of this appeal shall be taxed to the state.

_____________________________ PAUL G. SUMMERS, JUDGE

_____________________________ DAVID G. HAYES, JUDGE

_____________________________ JOE G. RILEY, JUDGE