FILED

September 10, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY SESSION, 1997

WILLIAM LEWIS HOWELL ) C.C.A. NO. 03C01-9703-CR-00095

)

Appellant, )

)

) KNOX COUNTY

VS. )

) HON. RAY L. JENKINS

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF KNOX COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

LESLIE M. JEFFRESS JOHN KNOX WALKUP

1776 Riverview Tower Attorney General and Reporter

900 S. Gay Street

Knoxville, TN 37902 MARVIN E. CLEMENTS, JR.

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

RANDALL E. NICHOLS

District Attorney General

CHARME JOHNSON

Assistant District Attorney General

City-County Building

Knoxville, TN 37902

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
1

See State v. W illiam Howell, alias W illiam Lewis Howell, C.C.A. No. 1113, Knox County (Tenn. 

Crim. App., Knoxville, June 30, 1987).

2

The original petition for post-conviction relief is not found in the record on appeal. Both the 

amended petition, which is in the record, and the trial judge’s order of dismissal, recite that the

original petition was filed November 30, 1988.

-2-

OPINION

The Defendant appeals as of right from the trial court’s dismissal of his

petition for post-conviction relief without conducting an evidentiary hearing and

without considering the merits of the petition. We reverse the judgment of the

trial court and remand this case for further proceedings.

The Defendant was originally convicted on a jury verdict of aggravated

sexual battery and was sentenced to serve thirty years as an especially

aggravated offender. This court affirmed his conviction on direct appeal in 1987.1

The Defendant apparently filed a timely petition for post-conviction relief alleging

that he received ineffective assistance of trial counsel.2

 The trial court has never

conducted an evidentiary hearing on the merits of the petition for post-conviction

relief.

This is the second time that the trial court has dismissed the petition for

post-conviction relief. The trial judge first dismissed the petition for “failure to

prosecute” in an order dated November 16, 1995. After the Defendant appealed

that dismissal, the State acknowledged that the dismissal was not supported by

the record and asked that the case be remanded to the trial court for further

consideration. This Court granted the State’s motion, pointing out that the trial

court had not set forth in its order or a written memorandum all grounds
-3-

presented in the petition with findings of fact and conclusions of law regarding

each ground as required by law. Tenn. Code Ann. § 40-30-118(b) (repealed

1995). If the trial court again determined that the petition should be dismissed

without an evidentiary hearing, the court was directed to “enter an appropriate

order setting forth its findings and its conclusions of law as to each of the claims

raised in the petition.” This order was entered by this Court on April 15, 1996.

On October 9, 1996, the trial court, apparently acting sua sponte, entered

a new order dismissing the petition. This was done without a hearing and

apparently without any notice to the Defendant or his appointed counsel. A few

days after the entry of the trial court’s order dismissing the petition a second time,

Defendant’s appointed counsel filed a motion requesting the trial court to

reconsider its dismissal. After hearing argument on the motion the trial court

denied the request, stating “Well, at this juncture I’ve decided that it ought to be

dismissed, and if the Court of Criminal Appeals in its infinite wisdom decides that

it needs to be sent back, then I’ll hear it; otherwise no.”

It is readily apparent that the trial court did not adhere to or comply with the

order of this Court remanding this case on April 15, 1996. For this reason, we

must again reverse the order of the trial court dismissing the petition and again

remand this case for further consideration.

In the order dismissing this case after this Court had remanded it to the trial

court, the trial judge stated as reasons for dismissing the petition the following:
-4-

From the initial filing of this petition, the defendant/petitioner

has had 26 hearing dates assigned and three attorneys appointed

to represent him at his request. On the last hearing date, November

16, 1995, the defendant/petitioner again requested a new attorney

and the Court dismissed the petition. As a result the Court finds that

the defendant has been furnished adequate time and sufficient legal

assistance to prosecute this petition, that he has refused and failed

to present any proof sustaining his allegations that would support

post-conviction relief, that he has failed to carry his burden of proof

either by preponderance of the evidence or clear and convincing

proof and has indeed abandoned his claim.

As a result the defendant/petitioner’s Petition is without merit

in each and every instance and the same is again DISMISSED.

As we have noted, this post-conviction petition was filed on November 30,

1988, and the trial court has never conducted an evidentiary hearing on or

addressed the merits of the allegations or grounds for relief raised in the petition.

During the entire time this petition has been pending in the trial court, the

Defendant has remained incarcerated in the Tennessee Department of

Correction. The record on appeal does not reflect why a hearing was not

conducted on any of the “twenty-six hearing dates” referred to by the trial judge.

Obviously, the Defendant cannot present any proof in support of his allegations

unless and until an evidentiary hearing is conducted, with the Defendant present

and afforded the opportunity to present testimony or other evidence. There is

nothing in this record to support the trial court’s finding that the Defendant has

abandoned his claim. While the Defendant’s petition for post-conviction relief

may well be totally without merit, there is simply nothing in this record that

supports this finding by the trial judge. 

For the reasons stated in this opinion, we conclude that this case must be

again remanded to the trial court for further consideration. We also conclude that

the interests of fairness, justice and judicial economy would be better served if
-5-

a judge other than the trial judge who has twice dismissed this petition conducts

such further proceedings. 

The judgment of the trial court is reversed and this case is remanded for

further proceedings. Upon remand, the Honorable Ray L. Jenkins shall be

recused from further consideration of this matter.

___________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE