State v. Michael South

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 18, 1996
• Docket: 02C01-9701-CR-00029
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1998 SESSION

MICHAEL L. SOUTH, ) ) FILED Petitioner, ) C. C. A. NO. 02C01-9701-CR-00029 ) January 8, 1998 vs. ) SHELBY COUNTY ) Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) No. P-17556 ) Respondent. )

ORDER

This case represents an appeal from the dismissal of the petitioner’s

second petition for post-conviction relief. The petitioner was originally convicted of

aggravated rape and aggravated robbery, and received consecutive sentences of sixty

and thirty years respectively. The petitioner also alleges that he was convicted of

aggravated burglary and theft. On appeal, this Court affirmed the convictions of

aggravated rape and aggravated robbery; the petitioner apparently did not appeal the

other two convictions. State v. Michael R. South, No. 02C01-9209-CR-00203 (Tenn.

Crim. App., Sept. 15, 1993). The Supreme Court denied application for permission to

appeal on March 7, 1994.

After an evidentiary hearing, the petitioner's first post-conviction petition

alleging ineffective assistance of counsel was denied by the trial court on or about

January 18, 1996. This Court affirmed the denial on appeal. Michael South v. State,

No. 02C01-9609-CR-00312 (Tenn. Crim. App., Feb. 27, 1997). On September 30,

1996, the petitioner filed this, his second petition for post-conviction relief. The trial

court dismissed the petition without a hearing, and the case is now before us on appeal.

T.C.A. § 40-30-202(c) (1996 Supp.) 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 a petition that was resolved on the

merits by the trial court, the petitioner’s second petition was properly dismissed.

Moreover, T.C.A. § 40-30-206(c) (1996 Supp.) states that the trial court shall dismiss

any subsequent petition if it appears a prior petition is already pending in the Court of

Criminal Appeals. At the time the petitioner filed his second petition in the trial court,

his first petition was on appeal to this Court. For these reasons, the petitioner’s second

petition for post-conviction relief was properly dismissed.

We conclude, therefore, that the trial court did not err in dismissing the

petitioner’s second petition for post-conviction relief. Accordingly, it is hereby

ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20,

Rules of the Court of Criminal Appeals.

Enter, this the ___ day of January, 1998.

____________________________ DAVID G. HAYES, JUDGE

CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

______________________________ JOE G. RILEY, JUDGE