IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 19, 2002

DONNIE W. FOULKS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Greene County

No. 01CR223 James E. Beckner, Judge

No. E2002-00224-CCA-R3-PC

October 9, 2002

The petitioner, Donnie W. Foulks, appeals the summary dismissal of his petition for post-conviction

relief. The post-conviction court, citing Tennessee Code Annotated section 40-30-202(c) (1997),

determined that the petitioner had previously filed a petition for post-conviction relief and was

therefore precluded from seeking relief in a second proceeding. Concluding that the post-conviction

court failed to consider that the petitioner’s first post-conviction petition was not resolved on the

merits, we reverse the judgment of the post-conviction court and remand for further proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

DAVID H. WELLES, J., joined.

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

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In December 1996, the petitioner was convicted of second degree murder and

sentenced to twenty-five years in confinement. On August 17, 1998, this court affirmed the

petitioner’s conviction and sentence. State v. Donnie Wayne Foulks, No. 03C01-9705-CR-00194,

1998 Tenn. Crim. App. LEXIS 864 (Knoxville, Aug. 17, 1998). Following this court’s decision, the

petitioner’s counsel did not withdraw from further representation of the petitioner pursuant to

Tennessee Supreme Court Rule 14 and did not seek to appeal this court’s judgment 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 failing to notify the petitioner of

this court’s adverse decision and also for failing to file an application for permission to appeal to the
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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 an order on July 2, 2001, which vacated and

reentered its judgment of August 17, 1998, “for the sole purpose of 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 the Tennessee

Supreme Court.

On December 31, 2001, the petitioner filed the present petition for post-conviction

relief, alleging ineffective assistance of counsel at trial and on appeal. On January 11, 2002, the

post-conviction court summarily dismissed the instant petition, citing Tennessee Code Annotated

section 40-30-202(c) and concluding that because the petitioner had previously filed a petition for

post-conviction relief on May 12, 1999, he was precluded from filing the instant petition.

Furthermore, the petitioner’s motion to reconsider was denied on January 18, 2002. The petitioner

timely appealed the post-conviction court’s ruling, alleging that because his first petition for postconviction relief was not decided on its merits, the post-conviction court erred in dismissing his

second post-conviction petition. The State concedes that the trial court erred in summarily

dismissing the petition on the basis of Tennessee Code Annotated section 40-30-202(c). We agree.

II. Analysis

Generally, the Post-Conviction Procedure Act provides 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 delayed appeal through post-conviction proceedings, this court has concluded

that any other allegations in the petition should be dismissed without prejudice pending the direct

appeal. Hughes v. State, 77 S.W.3d 801, 802 (Tenn. Crim. App. 2001). In Gibson v. State, 7

S.W.3d 47, 50 (Tenn. Crim. App. 1998), this court provided guidance to the post-conviction court

when addressing petitions in which the request for a delayed appeal has been consolidated with an

attack on the conviction. This court concluded:

the better procedure is for the trial 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

statute provides that if a petition has been resolved on its merits, a

subsequent petition must be summarily dismissed. Tenn. Code Ann.

§§ 40-30-202(c); 40-30-206(b). Conversely, we interpret this to

mean that those petitions not resolved “on their merits” are not

subject to dismissal. [Id.] This procedure would allow the [petitioner]

to pursue his post-conviction relief after review from the supreme

court.

Id.
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Although the petitioner 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 for post-conviction relief without prejudice and provided that the petitioner would be

allowed “to pursue post-conviction relief following review by the supreme court.” Therefore, we

conclude that the post-conviction court erred in summarily dismissing the petitioner’s claim for

relief. The post-conviction court is required to review the petition on its merits in accordance with

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

III. Conclusion

Accordingly, the judgment of the post-conviction court is reversed and this matter is

remanded for further proceedings consistent with this opinion. 

 

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NORMA McGEE OGLE, JUDGE