# FILED
September 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT NASHVILLE AUGUST 1997 SESSION
JOE HENRY

MOORE, ) C.C.A . No. 01C01- 9608-CR-00383 ) Appellant, ) DAVIDSON COUNTY ) VS. ) HON. A NN LA CY JOHNS , ) JUDGE STA TE OF TENN ESSEE, ) ) (POST-CON VICTI ON: Appellee. ) DELA YED APPEA L)

FOR TH E APPEL LANT: FOR THE APPELLEE: THOMAS F. BLOOM JOHN KNOX WALKUP 500 Church Street Attorney Gen eral and Repor ter 5th Floor Nashvil le, TN 37219 MICHA EL J. FA HEY, II Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. JO HNSON, III Distric t Attorney General ROGER MOORE Assistant D istrict A

ttorney Gener

al Washington Sq., Ste. 500 222 Second Avenue, N. Nashvil le, TN 37201-1649

OPINI ON FI LED:
AF FIRMED
JOE G. RI LEY, JUDGE2 O P I N I O N Appellant, Joe Henry M oore, appeals thesummary dis missal of his moti on for delayed appe al o f hissec ond p etit ion for p ost- conv ict ion rel ief. Finding no basis to grant the del ayed appeal, we AFFIRM the dismissal of his motion.

I
App el lant was

conv ict ed i n 198 6 of fi rst -deg ree murd er a nd r ecei ved a li fe sentence. The convict ion and sentence were affirmed by this Court in 1987, and the Tennessee Supreme Cour t denied applic ation for permiss ion to appeal in 1988. On January 3, 1989, appellant fil ed his first pe tition for post-conv iction rel ief. The trial cour

t denied reli ef on April 10, 1990, after an evide ntiary hear ing. No app eal
was taken. Appell ant contends his at torn ey f ailed to appeal this dismis sal or otherwis e notify him of the d ismissal. Appellantthen filed his seco nd petitio n for post-conv iction rel ief on May 20, 1993, requesti ng a delayed appeal of the d enial of his first post-c onviction petition. The basis for t he petition w as the alleg ed failure of his at torney to not ify him of the pr ior dismissal or otherw ise file an appeal on his behalf. The s econd p etit ion wa s dismissed on N ovember 19, 1993, for failure to st ate a claim and having been filed beyond the statute of li mitations. C ounsel was not appointed, nor did the appellant seek an appeal of thi s dismissal

. Appellantthen filed his third petition f or post-conviction relief on Oct ober 3, 1994, again requ esting a delayed appeal of the dismissal of his first pos t-convic tion reliefpetition. This petition was dismissed by the trial co urt on July 11, 1995, after
an evidentiary hearing. The trial court found that th e third petition rel ated to the sa me subject matter

contai ned in the sec ond peti tion w hich was dis mi ssed wit hout an appeal. According ly, the tr ial court det ermined that appel lant’s failure to appeal the dismissal of hi s second petiti on was fatal t o his pursui t of the third peti tion. On appeal from the dis missal of the thi rd petition, this Court affirmed the judgmentof the trial c ourt. We found that appellant’s fai lure to appeal the denial of3

his second peti tion constitut ed a “wai ver” w ithin the meaning of Tenn. Code Ann. § 40-30-112(b)( 1)[repealed; now Tenn. Code Ann. § 40-30-206(g )(Supp. 1996)]

. Joe Henry Moore v. State of Tenness ee , C.C.A. No. 01C01-9601-CR -00009, Dav idson County (Tenn. Crim. App. fil ed April 3, 19 97, at Nashv ille). On February

5, 1996, whi le the appeal on the denial of the thi rd petition w as pendin g, appellant filed a “Motion for D elayed Appeal ” from the denial of his second post-convi ction relief petiti on. On March 27, 1996, the tri al court denied t he motion. It is from this denial that the appellant brings this appeal.

II

First ly, we note that the sole basis alleged i n t he Motion for De layed Appeal is the failure of the tr ial c ourt to appoint l egal counsel upon dismissi ng the second petition. The fact that appellant di d not have an at torney does not excuse t he failure to appeal. Seco ndly, the Motion for D elayed Appeal , having been filed in Febr uary 1996, is controlled b y the Post- Convicti on Procedure Ac t of 1995. See

Tenn. Code Ann

. §40-30-201(Supp. 1996), Compilers Notes. A del ayed appeal under these statutes is available only from the “ original convicti on.” Tenn. Code Ann. § 40-30-213(Sup p. 1996). In short, a delayed appeal pursuant to the post-conviction statutes is unavailabl e on an appeal from the de nial of post-conv iction rel ief. We, therefore, AFFIRM the j udgment of the tri al court.

JOE G. RILEY , JUDGE4

CONCUR:

CURWOOD W ITT, JUDGE

JOE H. WALKER, III, SPECIAL JUDGE