### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 1, 200 3 GARY WALLAC E v. STATE OF TENNESSEE Appeal from the Circuit Court for Madison County No. C-02-70 Roy B. Morgan, Judge

No. W2002-01832-CCA-R3-PC - F iled June 26, 2003

The Appellant, Gary

Wallace, seeks review of the post-conviction court’s dismissal of his petition for post- convicti on relief, pursua nt to the TennesseePost-Conviction DNA Analysis Act of 2001 and the court’s refusal to permit him to reopen his 1994 petition for post-conviction relief. Aft er review, the judg ment of the trial cou rt is aff irmed in both respe cts. Tenn. R. App.P. 3; Judg ment of t he Circui t Court A ffirmed.
D AV ID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and T HOMAS T. W OODA LL , J., joined. Michael D. Rasnake, Jackson, Tennessee, for the Appe llant, Gary Wallace

. Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicitor General; J. Ross Dy er, AssistantAttorney

Genera l; James G. (Jerry) Woodall, District Attorney Genera l; and Alf red Ear ls, Assistant District Attorney Gene ral, for the Appellee, State of Tennessee.

OPINION Procedural History

The Appellan

t is curre ntly serving a life se ntence in the Dep artment o f Correction as a result of his conviction for armed

robbery in 1985. On

direct appeal, this conviction was affirmed. State v. Gary Wallace , 1985 Tenn. Crim. App. LEXI S 2962 (Tenn. Crim. App. at Jackson, Dec. 4, 1985), perm. to appeal denied, (Tenn. 1986). In 1994, the Appe llant’s petition for post-conviction relief was dismissed and, on appeal, this court affirmed the lower court’s ruling. State v. Gary Wallace , No. 02C01-9404-CC-00084 (Tenn. Crim. App. at Jackson, Mar. 22, 1995), perm. to appeal denied , (Tenn. 1995). In July 2001, the Appellant’s efforts to reopen his 1994 post-conviction petition were denied. On appeal, this court affirmed. Gary W allace v . State , No. W2001- 02418-CCA -R3-PC-2-

(Tenn. Crim. App. at Jackson, July 23, 2002). On March 1, 2002, the Appellant filed the current pe tit ion for post-conviction relief, pursuant to the Post-Conviction DNA Analy sis Act of 2001, seeking to have physical e vidence, namely

a gun and a ski mask, submitted for DNA testing in order to prove his innocence. Analysis The Post-C onviction

DNA Ana

lys is Act of 2 001 provid

es as follows: [A] person convicte d and sentenced for the commission of first degree murder, second degree

murder, aggrava

ted rape, rape, agg

ravated sexual battery

or rape o f a chi ld, the attempted commission of any of these offenses, any

lesser included offenses of these offenses, or, at the discr etion of the trial judge, any other offense, may at any

time, file a

petition requesting the forensic DNA analy sis of any evidence that is in the possess ion or con trol of the

prosecu tion, law e

nforce ment, la bora to ry, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence.
Tenn. Code Ann. § 40- 30-403 (S upp. 2002) . Under t he Act, four prerequisites must exist before the trial court may

order D NA analy sis of evid ence. T he prer equisite a t issue in th

e case before us is that “[t]he evidence is still in existence and in such a condition that DNA analy sis may be conducte d.” Tenn. Code Ann. §§ 40-30-404(2), -405(2) (Supp. 2002).
At the post-conviction hearing, the Appellan t and the St

ateagreed that the evidence soug ht to be submitted for

DNA testing was destroy ed pursuant to a trial court order dated August 5, 1987. This order followed the supreme court’s 1986 denial of the Appellant’s application for permission to appeal t

his court ’s affir

mance of his armed

robbery convicti on. Clear

ly, dismiss al of th e Appellant’s pet it ion under this Act wa s statutor

ily a uthorized because there wa s no evide

nce to analyze. Upon being advised by the post-conviction court that the petition would be dismissed, the Appellant request ed the co urt to per mit him to reopen his 1994 post-conviction petition pursuant to a provision of the Post-Conviction DNA Analysis Act, which permits the post-c onviction court “t o make such other orders as may be appropriate.” Tenn. Code Ann. § 40-30-411 (Supp. 2002). The Appe llant’s reading of this section is misplaced. First, Tennessee Code Annotated § 40- 30-21 7 (1997), not the Post-Conviction DNA Analysis Act of 2001, governs the autho rity to reopen postconviction proceedings. Moreover, as argued by the State, Tennessee Code Annotated § 40-30-411 simply grants to the trial court the authority to enter orders w hich may aid in the app lication o f postconviction proceedings sought under the Post-Conviction DNA An al ysi s A ct . A cc or di ng ly, the trial court’s refusal to reopen the Appellant’s 1994 post-conviction petition was prope r. Notwithstanding dismissal upon the merits of t his issue, we also note that the Appellant’s motion to reope

n was def icient fo r two rea sons. Fir st, the sta tute provid es that “[ t]he motion [to reopen] must set out th e factual basis underly ing its claims and must be supported by a ffidavit.” Te nn. Code Ann. § 40- 30-217(b ). The Ap pellant’ s oral moti on faile d to comply with these-3-

require ments; thus, it wa s not prope rly before the post- convicti on court. Additiona lly, we note th at, even had the petition been properly before the court, the Appellan t has failed to comply with the requisite appellate procedures when seeking review of the denial of a petition to reopen. In seeking review of a cour

t’s denia l, a petiti oner sha

ll f i le, within ten days of the lower court’s ruling , an application in the Court

of Criminal A

ppeals seeking permission to appeal . Tenn. Code Ann. § 40- 30-217(c) (emphasis added); Tenn. R. Sup. Ct. 28, § 10(B). The application shall be accompanied by copies of

all docum ents filed by b oth parties in the trial court and the order denying the motion

. Tenn. Code Ann. § 40-30-2 17(c) ( emphasisadded); see also Tenn. R. Su

p. Ct . 28, § 10(B). An appeal as of right, which was pursued in this case, is not available f or review of

a lower court ’s denial of a motion to reopen a petition for post-con viction relief. Tenn. R. A pp. P. 3(b) ; John Harold Willia ms, Jr. v . State , No. W1999-01731-CCA-R3-PC (Tenn. Crim. App. at Jackson, Mar. 23, 2000). CONCLUSION Based upon the f

orego ing, the

Madison County

Circuit C ourt’s denial of the Appellant’s petition for

post-conviction relief under the Post-Conviction DNA Analysis Act of 2001 and r efusal to consider Appellant’s motion to reopen his original petition for post-conviction relief is affirmed.

___________________________________ DAVID G. HAYES, JUDGE