# FILED

December 17, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

JEFFREY LYNN BUCKNER, ) C.C.A. NO. 03C01-9703-C C-00116 ) Appellant ) UNION COU NTY ) v. ) HON. LEE ASBURY, ) JUDGE STATE OF TENNESSEE, ) ) Post-Conviction Appellee )

FOR THE APPELLANT FOR THE APPELLEE Douglas A. Trant John Knox Walkup 900 S. Gay Street Attorney General & Repor ter Suite 1502 Knoxville, TN 37902 Clinton J. Morgan Cordell Hull Buildi ng, Second Floor 425 5th Avenue North Nashville, TN 37243-0493

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE-2- O P I N I O N The petitioner seeks to have a conviction for murder ov erturned by way of post-conviction relief after this case was affirmed by the Court of Criminal Ap peals and aft er the Sup reme Cou rt denied review. The record we have in this case is curious. A petition for post-conviction relief was filed (apparently on June 18, 1990 ) in the trial court. An iss ue raised was the ineffectiv eness of trial counsel. The State filed an answer to the petiti on on January 28, 1991, and the matter was heard on February 1, 1991. How ever, no order on that hear ing was entered at that time. On March 14, 1991, a motion was filed for an extension of tim e to add as a defendant another attorney who r epresented the petitioner on appeal from the original convicti on. On May 28, 1991, the petition er filed a supplemental petition for postconviction relief in w

hich he alleged that the couns el who represented him on appeal from the original convi ction was ineffective. On June 22, 1991, an order on the February 1, 1991, hearing was entered in this case which stated: A. That Petitioner failed to demonstr ate the existence of “newl y discovered” evidence which was not available to him prior to or during the trial of this cause, or which was

otherwise releven t (sic) or admissibl e. B. That trial counsel, James Bell, was not incompetent or ineffective during the preparation or trial of this cause, such as woul d have deprived Petiti oner of any statutory or cons titutional right. Based upon all of the forego ing, It is therefore ORDERED as follows: 1. That t he petit ion for p ost convic tion relie f be overr uled in it s entiret y. 2. That the record remain open for 30 days from the date hereof in order that the Petitioner may file addit ional statements if desired. 3. That the State be granted 10 day s from the submission of additional statements to respond to the same. On June 28, 1991, a motion was fil ed to obtain an extension of time for filing the notice of appeal from this June 22, 19 91, order, and the trial cour t entered an order dated June 28, 1991, gra nting the requested ex tension of time.-3- After the pleadings above set out, further motions were sporadically filed un til the case was heard agai n by the trial court on October 14, 1996. At the hearing of October 14, 1996, the petitioner abandoned any claim of ineffectivenes s of appellate

counsel and asked for the court t o reopen the original post -conviction proceeding for further attack upon the compe tency of original trial counsel. Without specifically ruling

on the motion to reopen the case, the trial court allow

ed counsel to present evidence on the all egations in the origi nal petition. The petitioner presented as ev idence his own testimony and the testimony of a police officer, who intr oduced pictures taken after the ev ent which showed w

ounds on the hands of the deceased. On October 18, 1996, the trial judge entered an order finding that the petitioner had failed to show the ineffectiveness of trial c ounsel which had been alleged in the origi nal petition and raised in t he evidence at the hearing of October 14, 1996. The State says the appeal in thi s case is barred because the order of June 22, 1991, which denied relief to the petitioner, became a final order and therefore the trial judge had no author ity to grant the motion for an extension of time. Accordingly, the State alleged, the order of October 14, 1996, denying relief is void and not subject to appeal. We agree with th e State that a trial judg e may not gr

ant an exten sion of time to file a notice of appeal and that the orde r of June 22, 1991, would, under most circumstances, become final. The pr oceeding of October 14, 1996, w ould then be void, as argued by the State. However, i n this case it is unclear whether the June 22, 1991, order was entered as a final order or as a judg ment in the case; from the record it appears the tri al judge never treated it as final. We therefore conclude that the order was not final for pur poses of terminating this cas e, and we decline the invitation to dismiss

the appeal for that reason. We are somewhat hampered in our review of this matter because the transcript of what w

as presented by the parties at the hearing on the orig inal petition on February 1, 1991, is not in the record.-4- We are, however, able to determine from the evidence presented on October 14, 1996 that the evidence suppor ts the judgment of the trial c ourt in all respects and we find that the judgment sho uld be affirmed.

John K. Byers, Sen ior Judge CONCUR:

Gary R. Wad e, Judge

Joseph M. Tipto n, Judge