FILED

October 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1998 SESSION

GARY L. GREEN, * # 01C01-9709-CR-00393

Appellant, * DAVIDSON COUNTY

VS. * Hon. Thomas H. Shriver, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

*

For Appellant: For Appellee:

Gary L. Green, Pro Se John Knox Walkup

# 149575 Attorney General & Reporter

CCA/SCCC 

P.O. Box 279 Elizabeth B. Marney 

Clifton, TN 38425 Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

Mary Hausman

Assistant District Attorney General

Washington Square

Suite 500

222 Second Avenue, North

Nashville, TN 37201-1649

OPINION FILED: __________________

AFFIRMED 

GARY R. WADE, PRESIDING JUDGE
2

OPINION

On August 15, 1996, the petitioner, Gary L. Green, was convicted of

especially aggravated kidnapping. He received a Range II, thirty-year sentence. 

State v. Gary L. Green, No. 01C01-9706-CR-00207, slip op. at 2 (Tenn. Crim. App.,

at Nashville, Apr. 9, 1998), application to appeal filed, (May 27, 1998). On July 18,

1997, he filed this petition for post-conviction relief claiming the indictment was

defective and that his counsel was ineffective. Several days later, the trial court

entered an order dismissing the petition for failure to state a claim for relief. 

On appeal, the petitioner contends the trial court erred by dismissing

his petition without the appointment of counsel, the opportunity to amend, or an

evidentiary hearing. For grounds other than those stated by the trial court, we affirm

the dismissal. 

The petitioner's case was on direct appeal when this petition for postconviction relief was filed. On April 9, 1998, this court affirmed the especially

aggravated kidnapping conviction and on May 27, 1998, the petitioner filed a pro se

Rule 11 application for permission to appeal to the supreme court. Id. The Rule 11

application is still pending. 

A petition for post-conviction relief may not be maintained while a

direct appeal of the same conviction is pending. Jones v. State, 453 S.W.2d 433

(Tenn. Crim. App. 1970). The new Post-Conviction Procedure Act provides that a

petition may be filed "within one (1) year of the date of the final action of the highest

state appellate court to which an appeal is taken." Tenn. Code Ann. § 40-30-202(a). 

On the date this petition was dismissed, this court had not ruled on the petitioner's

direct appeal. Thus, the petition was filed prematurely.
3

In Jones, our court explained the rationale for not allowing

consideration of a petition for post-conviction relief while the direct appeal is

pending:

It is generally held that whenever a court has acquired

jurisdiction of a case, no other court may ... interfere with

its action in matters concerning which it has acquired

jurisdiction. For example, if an appellate court has

acquired jurisdiction by virtue of an appeal from a

judgment of conviction, no other court may discharge the

defendant during the pendency of the appeal. That is to

say, a court has no power to grant [relief] pending an

appeal to another court from a conviction in a criminal

prosecution.

453 S.W.2d at 434 (quoting 39 Am.Jur.2d., Habeas Corpus, § 107). 

This court has applied the rationale of Jones to petitions filed after the

passage of the new Act. David McClain v. State, No. 02C01-9608-CR-00308, slip

op. at 2 (Tenn. Crim. App., at Jackson, Nov. 6, 1997). Because the petition was

filed prematurely, the dismissal is without prejudice. The petitioner shall have one

year from the final action of our state supreme court within which to file a petition for

post-conviction relief. See id.

__________________________________

Gary R. Wade, Presiding Judge

CONCUR:

_________________________________

Thomas T. Woodall, Judge

_________________________________

Curwood Witt, Judge