State v. Robert Dyer

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 26, 1998
• Docket: 02C01-9612-CC-00443
• Status: Published

Opinion

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

ROBERT J. DYER, JR., ) ) Petitioner, ) C. C. A. NO. 02C01-9612-CC-00443 ) vs. ) HENDERSON COUNTY ) STATE OF TENNESSEE,

Respondent. ) No. 95-066 ) ) FILED January 26, 1998

Cecil Crowson, Jr. ORDER Appellate C ourt Clerk

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

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

degree murder, child kidnapping, forgery, passing forged paper and two counts of

passing bad checks. This Court affirmed the convictions in 1992, and the petitioner

apparently did not seek an appeal to the Supreme Court. The petitioner thereafter filed

his first petition for post-conviction relief in 1992. After the appointment of counsel and

an evidentiary hearing, the trial court denied relief. On appeal, this Court affirmed the

denial of the trial court, Robert June Dyer, Jr. v. State, No. 02C01-9207-CC-00161

(Tenn. Crim. App., April 7, 1993), and the Supreme Court denied permission to appeal

on August 2, 1993.

In the present petition, which was filed on May 23, 1995, the petitioner

alleges that the trial court denied the petitioner a full and fair hearing on his first post-

conviction petition. The post-conviction court dismissed the petition without a hearing

stating that the petitioner failed to raise a colorable claim for which post-conviction relief

can be granted.1

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

1 The re cord be fore the C ourt reflec ts that the p etitioner did no t timely file the no tice of app eal. Pursuant to T.R.A.P. 4(a), however, we have decided to waive the timely filing in this case. 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 and

by this Court on appeal, the petitioner's second petition was properly dismissed.

Additionally, after reviewing the entire record on appeal, we find that the petitioner’s

claim does not fall within one of the limited circumstances under which a prior petition

may be re-opened. See T.C.A. § 40-30-217.

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.

___________________________ JOE G. RILEY, JUDGE

CONCUR:

_______________________________ JOE B. JONES, PRESIDING JUDGE

_______________________________ PAUL G. SUMMERS, JUDGE

_______________________________ DAVID G. HAYES, JUDGE