### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J une 19, 2002

DONNIE W. FOU LKS v. STATE OF TE NNESSEE

Direct Appeal from the Criminal Court for G reene County No. 01CR223 James E. Beckner, Judge

No. E2 002-0 0224- CCA-R3 -PC October 9, 2002

The petit ione r, Do nnie W. Foulks, a

ppeals the summary dismissal of his petition for post-conviction relief. Th e post-conviction court, citing Tennessee Code Annotated section 40-30-202(c) (1997), determin ed that the petitioner had previously f iled a petition for post-conviction relief and wa s thereforeprecluded from seeking relief in asecond proceeding. Concluding that the post-c onviction court failed to consider that the petitioner’s first post-conviction petition was not resolved o n the merits, w e rever se the jud gment of the post- convicti on court a nd reman d for fur

ther pro ceeding s.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court is Rev

ersed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G AR Y R. W ADE , P.J., and D AVID H. W ELLES , J., joined.

Donnie W. Foulks, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney Gene ral and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; and C. Berkeley

Bell, Jr., District Attorney Genera l, for the appelle e, State

of Tennessee.

OPINION I. Fact ual Backgro

und In December 1996, the petitioner was convicted of seco nd degree murder and sentenced to twenty-five y

ears in confinement. On August 17, 1998, this court affirmed the petitioner’s conviction and sentence. State v. Donnie Wayne F oulks , No. 03C01-9705-CR-00194, 1998 Tenn. Crim. App. LEXI S 864 (Knoxville, Aug. 17, 1998). Following this court’s decision, the petitioner’s counsel did not withdraw from further representa tion of the petitioner pursuant to Tennessee Supreme Court Rule 14 an d did not se ek to appeal t his court ’s judgm

ent to the supreme court pursuant to Rule 11, Tennessee Rules of Appellate Procedure

.

On May 12, 1999, the petitioner filed a pro se petition for post-conviction relief and asserted, among other

grounds, that his counsel was ineffective for f ailing to notify the petitioner of this court’s adverse decision and also f or failin g to file an application for permission to appeal to the-2-

supreme court. The post-conviction court denied relief and the petitioner timely filed a notice of appeal to this court on July 3, 2000. This court entered a n order on July 2, 2001, which vaca ted and reentered its judgme

nt of Aug ust 17, 1998, “for the

sole purp oseof reinstating the time allowed for the petitioner to seek second-tier appellate review in the Tennessee Supreme Court.” The order further provided, “[t]he petition for post-conviction relief filed in trial court case no. 99CR079 and the remaining claims raised therein shall be dismissed without prejudice.” On November 5, 2001, the petitioner’s application for permission to appeal his conviction was denied by t he Tennessee Supreme C ourt.

On December 31, 2001, the petitioner filed the present petition for post-conviction relief, allegi ng inef

fective assistanc e of coun sel at tri al and on a ppeal. On January 11, 2002, the post-conviction court sum marily dismissed the instant petition, citing Tennessee Code Annotated section 40-30-202(c) and concluding that bec ause the petitione r had pre viously filed a petition for post-conviction relief on May 12, 1999 , h e was precluded from filing the instant petition. Furthermore, the petitioner’s motion to reconsider was denied on January 18, 2002. The petitioner timely appeale d the post- convicti on court’ s ruling , alleg ing that because his first petition for postconviction relief w as not dec ided on its merit s, the po st-convi ction cou rt erre d in dismissi ng his second post-conviction petition. The State concedes that the trial court erred in summ arily dismissing the petition on the basis of Tennessee Code Annotated section 40-30-202(c ). We agree.

II. Analysis

Ge ne ra ll y, the Post-Conviction Procedure Act provi d es for the filing of only one petition for post-conviction relief. Tenn. Code Ann. § 40-30-202(c) (1997) . However, when a petitioner is granted a delay

ed appeal through post-conviction proceeding s, this courthas concluded that any other allegations in the petition should be dismissed without prejudice pending the direct appeal. Hughesv. State , 77 S.W.3d 80 1, 8 02 (Tenn. Crim. App. 2001). In Gibson v. St ate , 7 S.W.3d 47, 50 (Tenn. Crim. App. 1998), this court provided guidance to the post-conviction cour t when addressing petitions in which the request for a delayed a ppeal has been

consolidated with an attack on the conviction. This court concluded:

the better procedure is for the trial court to g rant the delay

ed appe al, when warranted, and

dismiss the collateral attack upon the conviction without prejudice. We arecognizant of the statutory provision which contemplates the filing of only one petition for

post-conviction relief from a single ju dgment. Tenn. Cod

e Ann. § 40 -30-202( c). This stat u te provides that if a petition has been resolved on its merits, a subsequent

petition mu st be summa

rily dismissed. Tenn. Code Ann. §§ 40-30-202(c); 40-30-206(b). Conversely , we inter pret th is to

mean that those petitions not resolved “on t heir merits” are not subject to dismi ssal . [ Id. ] This procedure would allow the [petitioner] to pursue hi s pos t-convic tion relie f after review f rom the su

preme court. Id.-3- Alth ough the petiti oner filed two petitions for post-conviction relief, the first was clearly not determined on its merits. As noted, this court’s order of July 2, 2001, dismissed the first petition f or post-conviction relief without prejudice and provided that the petitioner would be allowed “to purs ue post-conviction relief following review by the supreme court.” Therefore, w e conclude that the post-conviction court erred in summarily dismissing the petitioner’s claim for relief. The post- convicti on court i s require d to revie w the peti tion on its merits in a

ccorda nce with Tennessee Code Annotated section 40-30-209 (1997).

III. Conclusion

Ac co rd in gl y, the judgment of the post-conviction court is reversed and this ma

tter is remanded for further proceedings consistent with this opinion.

___________________________________ NORMA McGEE OGLE, JUDGE