Warren Pratcher v. State of Tennessee-Concurring

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 10, 2018
• Docket: W2017-00300-CCA-R3-PC
• Status: Published

Opinion

01/10/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs November 7, 2017

WARREN PRATCHER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County No. 14-05852 J. Robert Carter, Jr., Judge

No. W2017-00300-CCA-R3-PC

JAMES CURWOOD WITT, JR., J., concurring.

I respectfully concur separately in this case to clarify a distinction between, on the one hand, the post-conviction court’s ordering a dismissal of the first petition with prejudice and, on the other hand, the petitioner’s waiver of post-conviction relief upon the voluntary dismissal of the first petition. Although I believe the latter may be effectual, I believe the former is not effectual apart from the petitioner’s waiver.

The order of dismissal of the first petition recited that the petitioner was “advised that his withdrawal [of the first petition] would constitute a waiver of the issues and [that] he agreed that the dismissal of his petition would be ‘final.’” Based upon the state of the appellate record and notably the absence of a transcript of the hearing attendant to withdrawal of the first petition, we presume the petitioner’s effective waiver of his post-conviction claims. On that basis, I concur in affirming the lower court’s order.

It should be emphasized, however, that a post-conviction petitioner has an unfettered right to withdraw his petition prior to a hearing “without prejudice to any rights to refile.” T.C.A. § 40-30-109 (c). Absent waiver of that right, the post-conviction court may not impose upon the petitioner’s withdrawal of the petition a restriction that bars refiling.

__________________________________ JAMES CURWOOD WITT, JR., JUDGE