# FILED
October 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL 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 & Repor ter CCA/SCCC P.O. Box 279 Elizabeth B. Marney Clifton, TN 38425 Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 Mary Hausman Assistant District A

ttorney General Washington Square Suite 500 222 Second Avenue, North Nashville, TN 37201-1649 OPINION FILED: __________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION On August 15, 1996, the petitione r, Gary L. Green, w as convicted of especially aggr

avated kidnapping. He r eceived a Range II, thi rty-year sentence. State v. Gary L. Gree n , No. 01C01-9706-CR-00207, slip op. at 2 (Tenn. Crim. Ap p., at Nashville, Apr. 9,1998), application to appeal filed , (May 27, 1998). On Jul y 18, 1997, he filed this petition for pos t-conviction relie

f claiming the indictment w as 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 b

y 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 thi s petition for postconviction relief was filed. On April 9, 1998, this court affirmed the esp ecially aggravated kidnapping conviction and on May 27, 1998, the petitioner filed a pro se Rule 11 application for permis sion to appeal to the supreme cour t. Id. The Rule 11 application is still pending.

A petition for post-convi ction relief may not be maintai ned while a direct appeal of the same convi ction is pending. Jones v. State , 453 S.W.2d 433 (Tenn. Crim. App. 1970). The new Post-Conviction Pro

cedure Act provides that a petition may be filed "within one (1) year of the date of the f inal action of the highest state appellate court to w hich an appeal is taken." Tenn. C ode Ann. § 40-30-202(a). On the date this petition was dismissed, this court had not ruled on the pet itioner's direct ap peal. Th us, the p etition wa s filed p rematur ely.3 In Jones , our court explained the rationale for not allowi ng consideration of a petition for post-conviction relief while the direct app eal is pending: It is generally hel d that whenever a court has acquired jurisdiction of a case, no other court may ... interfer e with its action in matters conc erning which it has

acquired jurisdiction. For ex

ample, if an appellate court has acquired j urisdicti on by vir tue of an appeal

from a judgment of conviction, no other court may discharge the defendant during the pendency of the appe al. That is to say, a court has no pow er to grant [relief] pendin g an appeal to another court from a conv iction in a criminal prosecution. 453 S.W.2d at 434 (quoting 39 Am.Jur.2d., Habea s Corpus, § 107).

This cou rt has a pplied the rati onale 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 Ja ckson, Nov. 6, 1997). Bec ause the petition was filed prematurely, the dismi ssal is without prej udice. The petitioner shall have one year from the final action of our s tate supreme court withi n which to file a petition for post-conviction reli ef. See id.

__________________________________ Gary R. Wad e, Presiding Judge CONCUR:

_________________________________ Thomas T. W oodall, Judge

_________________________________ Curwood Wi tt, Judge