# FILED May 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE APRIL 1998 SESSION
KEITH DOUGLAS WOOTEN, * C.C.A. # 01C01-9703-CR- 00111 Appellant, * WILSON COUNTY VS. * Hon. J.O. Bond, Judge STATE OF TENNESSEE, * (Post-Co nviction; Armed Rob bery)

Appellee. *
For Appellant : For Appellee : Peter B. Halverstadt John Knox Walkup Attorney at Law Attorney General and Repor ter P.O. Box 158521 Nashville, TN 37215 Elizabeth B. Marney Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243-0493 David Dur

ham Assistant District A

ttorney General 111 Cherry Street Lebanon, TN 37087

OPINION FILED:__________________________

JUDGMENT IN C.C.A. N O. 01C01-9303-CR-00078 VACATED AND REINSTATED

GARY R. WADE, JUDGE2 ORDER On March 16, 1989, the petitione r was convicted of tw o counts of armed ro bbery. Th e trial cou rt impose d concurr ent, Ran ge II sent ences of thirty-fi ve years on each count. Becaus e the convictions we re pursuant to a plea agreement , there was no direct appeal.

Thereafter, the petitioner filed a petition for post-conviction relief alleging as grounds that his counsel had performed ineff ectively. The trial court denied the claim and, on direct appeal, this court affirmed. Keith Dou glas W ooten v. State , No. 01C01-9303-CR-00078 ( Tenn. Crim. App., at Nashvi lle, July 22, 1993). After a review of the rec ord, this court concluded that the petitioner, who w as "no stranger to the criminal justice system," had as his "motivation to plead guilty ... his fear of consecutive sentences." Id. , slip op. at 4. The determination of the court was that the petitioner "appreciated the fact that his con victions would not increase the total amount of time he would se rve" due to sentences for other crimes. Id. Counsel for the petitioner w ithdrew after the entry

of the July 22, 1993 opinion. Due to clerical error, the petitioner w

as notified that the time to file an application for permission to appeal was September 20, 1 993, rather than August 21, 1993. A pro se application for permission to appeal, filed Sept ember 17, 1993, was rejected by our

supreme court as untimely
. On October 18, 1994, the petitioner filed a petition for writ

of habeas corpus in the United States District Court for the Middle District. O ur state attorney general sought a dismissal on the basis that the petitioner had not exhauste d his state remedy. The state contended that the petitioner would be entitled to a delayed appeal because he had been denied the oppor tunity of second tier rev iew in the3 Tennessee Supreme Court. The District Court dismissed the pe tition on that basis.

On October 11, 1995, the petitionerfiled this petition for postconviction relief seeking second-tier review of our July 22, 1993, opinion. The trial court ruled that it wa

s without authority

to grant the relief and dis missed the petition. Additional pleadings seek ing relief from the order of dis missal were unsuccess ful and this appeal followed.

The state has conceded in oral ar gument that an appropriate remedy is an order vacating and reinstating the July 22, 1993, opinion of this court. It is so ordered. But see Darrel D. Hayes v. State , No. 01C01-9604-CR-00 163 (Tenn. Cr im. App., at Nashville, Sept . 2, 1997). The petitioner may now seek a review

under the terms of Rule 11 of the Tennessee Rules o f Appellate Procedure. Costs are adjudged to the s tate.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ L.T. Lafferty, Special Judge