# FILED
February 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

DENVER JOE McMATH, SR ., ) ) Appellant, ) No. 03C01-9712-CR-00525

) ) Hamilton County v. ) ) Honorable Dougla s A Meyer, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
For the Appellant : For the Appellee : Barton C. Solomon John Knox Walkup 100 E. Tenth Street, Suite 401 Attorney General of Tennessee Chattanooga, TN 37402 and Todd R. K elley Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 William H. Cox, III District Attorney General 600 Market Street Chattanooga, TN 37402

OPINION FILED:_______________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner appeals from the order of the Hamilton County Cri minal Court dismissing his

“Petition for Post-Conv iction Relief or in the Alternative Motion to Reopen Post-Conviction Petition.” He contends that his 1975 conviction fo r third degree burglary and

resulting life sentence as an habitual criminal are v oid because the indictme nt fails to allege t he requisi te mens re a that he acted eit her “inte ntional ly, knowingly or recklessly.” We affirm the dismissal.

The trial court denied the petitioner relief on the basis tha t the indictment
was s uf fi ci en t u nd er

th e l aw th at ex is te d a t t he ti meof th e d ef en da nt ’s

co nv ic ti on . We agree. Th e petitio ner argue s in his pet ition tha t the alle gations t hat he “di d unlawfu lly, feloniously and burglar iously break and enter i nto a business house” contain n o allegation of the requisite mental state element fo r burglary. However, the word “feloniously” has hist

orically meant “proc

eeding from an evil heart o r purpose, done with a deliberate intention of committing a crime.” Black’s Law Dictionary , 617 (6th ed. 1990). As our supreme court has previously noted, “one meaning attached to the word is: ‘In a legal sense, done with intent to commit a crime.’” State v. Smith , 119 Tenn. 521, 105 S.W. 68, 70 (19 07). Thu s, the me ntal stat e inheren t in the wor d “felon iously” is sufficient for the petitioner’ s burglary charg e.

However, a recurr

ent circumstance has arisen after the enactment of the 1995 Post-Conviction Pr ocedure Act and exists i n the present case. It relat es to incorrect treatment of the petit ioner’s pleading as a pet ition for post-convicti on relief that entitles him to certain pr ocedural protections under the 1995 Act and to an appeal as of right.3 The petitioner’s 1975 third deg ree burglary conv iction was affirmed on appeal. McMath v. State , 544 S.W.2d 902 (Tenn. Crim. App. 1976). The petitio ner has previously sought

post-conviction rel ief from this conviction. See Denver Joe McMath v. State , No. 578, Hamilton County (Tenn. Crim. App. Nov. 28,1977), cert. denied (Tenn. Feb. 6, 1978); State v. Denver Joe M cMath , No. 882, Ha milton Count y (Tenn. Cr

im. App. Oct. 24, 1984).

Under the 1995 Act, a second petition for post-conviction relief shall be summarily dismissed if the prior petition was resolved on the merits by a court of competent jurisdiction. T.C.A. § 40-30-202(c). As previously noted, such is the case with the petitioner and his burglary conviction. Thus, the only avenue that was available to the petitioner was a moti on to reopen a prior post-co nviction petition purs uant to T.C.A. § 40-30-217. In this respect, the petitioner’s designation of his pleading as a “Petition for Post-Conv iction Relief or in the Alternative Motion to Reopen PostConvic tion Pet ition”

is inap propri ate under

the 1995

Act beca use the e

xisten ce of a prior post-conviction case resolved on the merits limits a petitioner subsequently to only a motion to reopen. This means that the petitioner was limited to the grounds provi ded in T.C.A. § 40-30-217(a) and could only seek permission to appeal to th is court within ten days of the denial of the motion. See T.C.A. § 40-30-217(c).

However, the trial

court treated the petitioner’s pleading as a postconvictio n petitio n, and its order den ying relief stated th at the pe titioner had thirt y days to perfe ct an app eal. Provi ding an in correct ti me perio d may be f atal beca use we have no authority to ignore

the statutory limit of ten days for filing an applic ation seeking permission to appeal a denial of a motion to reopen.

When faced with an alternat ive pleading that purports to be either a petition or a motion to reopen, the trial court must first establish if there has been a4

previous petition for post -conviction relief fil ed regarding that conv iction and resolution on the merits. If there has been, th e trial court may only review the pleading

under the standards and requirements provided for motions to reopen . It may not treat it as a full petition for post-convic

tion relief. In the present c ase, the pleading does not meet the standards contained in T.C.A. § 40-30-217(a) for a motion to reopen, and the petitioner is not entitled to have hi s prior post-convic tion petition reopened.
In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

__________________________ Joseph M. Tipto n, Judge
CONCUR:

_________________________ Gary R. Wade, Presiding Judge

_________________________ Norma McGee Ogle, Judge