1 Davis frames this issue as follows:
Whether the Defend ant’s constitutiona l due proc ess rights were violated when she was arrested on a warrant for contempt of court followi ng her fail

ure to appear a s a witness in Lew isburg City Co urt, thereby rendering h er ensuing arr est for contem pt o f cou rt and poss ession with intent to distribute invali d, and her subsequen t conviction for Possess ion of Sc hedule II for Resal

e and guil

ty plea for Failure to Appear f

ruits of t he poisonous tree. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs S eptember 19, 2001 STATE OF TEN

NESSEE v. RIT

A DAVIS Direct Appeal from the Circuit Court for Marshall County Nos. 13809; 14296 Charles Lee, Judge

No. M2000-03227-CCA-R3-CD - Filed November 9, 2001

The Appellant, Rita Da

vis, pled guilty

to one count of fa

ilure to appear,

a class E felo

n y, and was sentenced as a career offender

to six years confinement. No direct appeal of her sentence was taken. Davis then filed a petition for post-conviction relief, reques ting (1) a delayed direct appeal of her sentence; and (2) that her conviction be vaca ted upon g rounds: (a) that her guilty plea was involuntarily

entered based u

pon ineffective

assistance of co

unsel; and(b) that her conviction was obtained in violation of “constitutional due process rights.” 1
After review, we find that the post-conviction court’s consolidation of issue (1), granting the direct appeal of her sentence, and issue (2), the collateral review of Davis’ challeng e t o her conviction through post-conviction pr ocess, conflicts with our previous holding in Gibson v. State , 7 S.W.3d 47 (Tenn. Crim. App. 1 998). Thus, consist ent with Gibson , we reverse and remand issue (2)

with instructions that Davis’ collateral attack o f her c onviction be dismisse d without prejudice. With respect to issue (1), we grant review of Davis' six-year se ntence. After review, we find this issue is without merit and affirm her sentence as imposed. Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Rever

sed and Remanded in P art and Affirmed in Part.
D AVID G. H AYES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and J ERRY L. S MITH , J., joined. John H. Dickey

, Fayette ville, Tennessee

, for the Appella

nt, Rita Davis.2 Th e Appellan t had previo usly taken out a w arrant against h er boyfriend , Adrian H ill, for an assault. O n

November 30, 199 8, the App ellant failed to ap pear in the Lewisbu rg City Cour t to testify against Hill. T he Appe llant’s failure to appear resulted in a warrant beingissued for he r arrest for con tempt of co urt for failure to ap pear as the a ffiant. 3 Appellant appealed herconviction and sentence received on the felony posses sion charge. This court aff irmed both the convictio n and senten ce. See State v. Rita D avis , No. M 1999-01281-CCA-R3-CD (Tenn. Crim. App. at Nashville, Se pt. 22, 20 00), perm. to app. denied, (Tenn. March 12, 2001 ). -2- Paul G. Summers, Attorne y General and Reporter; Michael M oore, Solicitor General; John H. Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Weakley

E. Barnard, Assistant District Attorney General, for the Appellee , State of Tennessee.

OPINION Factual Backgrou

nd On December 3, 199 8, Tennessee Hig hway Patrol

Officer, Jimmy

Pitt s, st opped the Appellant’s vehicle for the purpose of serving an outstanding arrest warrant which had been

issued for the Appellant. The Appellant, who was a passenger in her vehicle, w

as placed under

arrest. 2 At the time of the stop, the Appellant was seated on the front passenger side

of the automobile and the Appellant’s sister was driving the vehicle. After removing the Appellant’s purse from the vehicle, officers found fifteen individually wrapped packages of crack cocaine inside he

r purse. As a res

ult of this seizure, the Appellant was subsequently indicted and later convicted by a jury of f elony drug possession with the intent to sell. On February 1, 1999, the Appellant f ailed to appear in the Lewisburg City Court for the preliminary

hearing on her drug

charge. As a result, the Appellant was indicted for failure to appear, a class E felony. On August 9,1999, following her jury conviction for class B felony possession, the Appellant pled guilty to the failure to appear charge

. On August 18, 1999, the trial court sentenced the Appellant to twenty-five years f or her conviction for felony drug possession and to six ye ars for failure to appear. 3
I. Post-Conviction Petition Aft er finding that the Appellant was denied first-tier review of her sentence, t he post

conviction court

granted the Appellant’s request for a delayed

appeal and, aft

er review, deni

ed all other requests for post-conviction relief. On appeal, the A ppellant cont ends, by way of a direc t appeal, that her

six-year se

ntence was exces sive and contends , by way of post-convictio

n process, that her conviction is void. The minimum requirements to assure that an Appellant’s due process rights are protected on appeal are defined in Ru

le 14, Tenn. Sup. Ct. R. See State v. Brown , 653 S.W.2d 765, 766-67 (Tenn. Crim. App. 1983). In Gibson v. State , 7 S.W.3d 47, 50 (Tenn. Crim. App. 1998), this co

urt set forth4 Tennessee Code Annotate d § 40-30-202(c)

provides: “In no eve

nt may more

than one ( 1) petit

ion forpostconviction relief be filed attac king a final judg ment.”

5 We wo uld acknowledge that the holding in Gibson applies on ly to a Tenn . R. App. P . 3 delayed appeal. Tennessee Supreme Court Rule 28 § 9(D), as amended on May 8, 2001, sets f orth the proper procedur e to be followed when granting a Tenn. R . App. P. 1 1 delayed appeal. -3- the procedure to be followed by the post-conviction court when granting a delay ed appealthat has been consolidated with

a collateral attack of th e convicti on, where an a ppellant, through no fault of his or her own, has

been denied the o

pportunity to

timely perf

ect an appeal: [T]he better procedure is fo r the tria l court to grant the delayed appeal, when warranted, and dismiss the collateral attack upon the conviction without prejudice. We are cognizant of the statutory provision which contemplates the filing of only one petition for post-conviction relief from a single judgment. Tenn. Code Ann. § 40-30- 202(c). This stat ute provides that if a petition has been resolved on its merits, a subsequent

petition must be sum maril y dismissed. Tenn. Code Ann. §§ 40-30- 202(c); 40-30-206(b). Con vers ely, we interpret this to mean that those petitions not resolved“on their merits” are not subject to dismissal. Id. This pr ocedure w ould allow the appellant to pursue his post-conviction relief after review from the supreme court. Gibson , 7 S.W.3d at 50; see also State v. Abebreellis Zandus Bond , No. W1999-02593-C CA-R3-CD (Tenn. Crim. App. at Jackson, Feb. 21 , 2001); Johnny Bernard Jones v. State , W2000-01241-CCAR3-PC (Tenn. Crim. App. at Jackson, Nov . 9, 2000); Jay A. Camero n v. State , No. M1998-00005- CCA-R3-CD

(Tenn. Crim. App. at Nashville, Aug. 18, 2000), perm. to appeal denied , (Tenn. Feb. 20, 2001). A petition for post-conviction relief, complainingof the original conviction and sentence, may not be maintained while a direct appeal of the sam

e conviction and s

entence is being prosecuted. Gibson , 7 S.W.3d at 49; Laney v. State , 826 S.W.2d 117, 118 (Tenn. 1992). To do otherwise wo

uld permit two appeals to be entertained at the same time. Thus, in the present case, the proper procedure would have been for the post-conviction court to grant thedelayed appeal on the sentencing issue and dismiss the remaining issues without prejudice. Because a post- conviction petition

may not be fi

led until the final judgment of

the highest court has been ent ere d, see Tenn. Code Ann. § 40-30-202, the instant petition for post-conviction relief was prematurely filed and shoul d have been dismissed accordingly. By not dismissing the remaining issues raised in the Appellant’s petition for post-conviction relief, the post-conviction court has, in effect, waived the Appellant’s right to later seek review of any appellate counsel errors containedin the direct appe al. 4 See also State v. Bond , No . W1 999-02593-CCA-R3-CD (Tenn. Crim. App. at Jackson, Feb. 21, 2001). 5
Acco rdi ngly, we remand issue (2) and any additional issuescontained there in to the Circuit Courtof Marshall

County for dismissal of this issue without prejudice. In conformity with Gibson , the Appellant may refile her petition for post-conviction r

elief alleging

these and other c

ognizable6 Tennessee Code Annotated § 40-35-108(a)(3) def ines a career of

fender as a person who has recei ved at least six prior felon y convictions of any classification if the defenda nt’s conviction offense is a class D or E felony.

7 The record reflects that the foll owing colloquy occurred at the Appellant’s guilt y plea hearing:
Prosecutor: We are alle ging that she is a career offender in [

this] cas e. Trial Court: Do you unders tand that your sentence in this m atter would be six years if y ou are found to be a career offender? Appellant: Yes, sir. -4- claims, “[W]ithin one (1) year of the date of the final action of the highe st state appellate court to which an appeal is taken . . . .” Tenn. Code Ann. § 40-30-202(a). With respect to the Appellant’s delayed a ppeal (issue (1)

), we elect to ad

dress this issue on it

s merits. II. Delayed Appeal The trial court sentenced the Appellant, as a R ange III career offender , to six years confinement

at sixty percent for failure to appear, a class E felony . The Appellant argues that the six -ye arsent ence imposed by the trial court was “excessive” and not the least severe measure necess ary to achie ve the purpose fo r which the sente

nce was intended

. The Appellant do

es not, however, contest her classification as a Range II I, career offender.
A “defendant

who is found by the

court beyond a reasonable doubt to be a career offender shallre ceiv e the maximum sentence within the applicable Range III .” Tenn. Code Ann. § 40-35- 108(c). 6 Accordingly, a defendant sentenced as a career offender must receive the maximum sentence within Range III pursuant to the provisions of subsection (c). Tenn. Code Ann. § 40-35- 108, Sentencing Commission Comments. 7 The maximum sentence and parole eligibility for persons having this type of extensive criminal record is in keeping with the sentencing purposes set forth in § 40-35-102. Tenn. Code Ann. § 40-35-108, Sentencing Commission Comments.
In cases such as the one before us, a trial court has no discretion with respect to the

length of the sentence and must impose themaximum sentence pursuant to Tenn. Code Ann. § 40-35-108. This issue is without m

erit. CONCLUSION After review, we find that the post-conviction court’s consolidation of

the Appellant's direct andpost-conviction appeal conflicts with our previous holdingin Gibson

. Thus, we reverse the postconviction court’s ruling o n issue two (2) and

remand to the Mar

shall County Ci

rcuit C ourt for further proceedings in conformity with Gibson

.-5-

With respect to the Ap

pellant's direc

t appeal, we find that the maximum six-year sentence imposed by the

trial court was sta

tutorily required and not excessive pursuant to Tenn. Code Ann. § 40-35-108(c). Accordingly, the six-y ear sentence imposed by the trial court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE