# FILED
October 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998 TIMOTHY R. POWELL, ) C.C.A. NO. 01C01-9708- CR-00379 ) Appe llant, ) ) ) DAVIDSON COUNTY VS. ) ) HON. FRA NK G. CLEMENT STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEA L FROM THE JUDGMENT OF THE PROBATE COURT OF DAVIDSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : TIMOTHY R. POW ELL JOHN KNOX WALKUP Pro Se Attorney Generaland Reporter 7466 Centennial Blvd. Nashvill e, TN 37209 LISA A. NAY LOR Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243-0493 VICTOR S . JOHN SON Distri ct Attorney General BERNARD Mc EVOY Assistant Distri ct Attorney General Washington Square, Suite 500 222 2n d Aven ue No rth Nashvill e, TN 37201-1649

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defen dant, Timothy R. Powell , appeals as of right f rom the order of the trialcourt summaril y dismissi ng his second petition for post-con viction relief. We affirm the ju dgme nt of the trial co urt.
Following a jury trial , the Defendant was found guil ty of ve hicular h omicide by intoxication and rec kless en dange rment. His conv ictions and his effective sentence of eight yea rs were a ffirmed b y this court. State v. Timothy R. Powe ll , C.C.A. No. 01-C -01-950 8-CR -00276 , Davidso n Cou nty (Ten n. Crim. A pp., Nash ville, Sept. 19 , 1996).

The Defe ndan t’s first pro se pe tit ion for post-convi ction rel ief was fi led Septe mber 18, 1995. The trial court initi ally entered an order di smissing t h e petiti on beca use h is conv iction w as be ing rev iewed on dire ct app eal. The cou rt subs eque ntly set aside i ts order of dismis sal and a ppointe d coun sel to represent the Defendant in hi s post-convi ction proceeding. Counsel filed an amended petiti on for post- convicti on relief on the Defendant’ s behalf on June 1 4, 1996 . In April 1997, the Defendant filed a petiti on to remove his counsel and a motio n for appointmentof new co unsel. The Defendant also filed a moti on to conti nue and resetthe hearing date for his post-convi ction proceeding. On Apri l 17, 1997, the trialcourt gra n ted the Defendant ’s motion to reset the p ost-convi ction heari ng date and denied the Defe ndant’s moti on that counselbe removed and n e w counsel appointed.-3- The post-convi ction heari ng was then setfor June 2, 1997. On June 2, 19 97, as reflec

ted in theminutes of t he trialcourt, t he Defendant was present along with his

counsel. At

that ti me the court denied the Defendant’s motion for an interlocutory appeal and for an extraordi nary appeal. The court granted the Defe ndan t’s motion to wi thdrawhis peti tion for post-convi ction rel iefand granted the motion by Defendant ’s counsel t o be allowed to withdraw as counsel for the Defen dant.

On July 18, 1997, the Defenda nt, acting pro se, fi led a lengthy, rambling, and conf using petition for pos t-conviction relief. His petition alleges generally tha t his ri ght to a fai r trial was violated by a biase d jury, faulty indictment, selec tive prosecution , vindict ive prosec uti on, improper j ury inst ructions, mental competency violati ons, double jeopar dy, and inef

fectiv e assistance of

coun sel— all of which rendered hi s convict ion unconsti tutionaland void.

The trialcourt found that the pet ition s hould be dismissed based upon Tennessee Code An notated § 40-30-206(d), which provi des as follows:

The petition mus t conta in a clear and spec ific state men t of all grounds upon which relief is so ught, in cludin g full disclosure of the factual basis of those g ro unds. A bare a llegation th at a constit utional righthas been viol ated and mere conclusi ons of law shall not be suff icient

to warrant

any furt her procee dings. Fa ilure to state a factual basi s for the g round s alleg ed sh all resu lt in imme diate dism issal of the petit ion. If , however, the petit ion was filedpro se, the judge may enter an order stat ing that t he petiti oner must file an amended petiti on thatcomp lies with this sec tion with in fifteen (15) days or

the petit ion willbe dismissed. Tenn. C ode Ann . § 40-30-206 (d).-4- We do not believe that the trial cou rt erred by dism issing this petiti on. The petiti on does not contai n a clear and specific statement of the grounds upon which relief

is sought, nor does it contain a f ull di sclosure of the factua l basis of the grou nds as serted. Th e p etiti on does contain many bar e allegat ions of violat ions of consti tutionalrigh ts an d many mere conclusions of law. Al though the statute gra nts the trial judge the discretion to allow a pro se petit ioner fi fteen days within whi ch to amend the peti tion to compl y with t he code section, the statute does not mandate that the jud ge do so . The tri al court noted that t he Defendant’s f

ormer pro se peti tion for post-convi ction rel ief had been amended with the assistance of court -appointed co unsel, and t hat subs equently t he Defendant petiti oned to remove his counsel and event ually moved to withdraw the prior post-convict ion pet iti on. The Post-Conviction Procedure Act contemp lates the filing of only one pe tition. Tenn. Cod e Ann. § 40 -30-202(c).

The trial court

ordered that the peti tion be dismiss ed because it did not conta in clear a nd sp ecific statements of grounds, i ncluding f ull di sclosure of the factual basis of t he ground s, an d because it cont ained bare al legations of violat ions of constitu tional rights w ith mere conclusions of law and wa s therefore not sufficient to warra nt furth er proc eedin gs. In th e proc edura l conte xt of this case, we be lieve the trial judge acted w ithin his discretionary auth ority.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE-5-

CONCUR:

___________________________________ JERRY L . SMI TH, J UDGE

___________________________________ JOHN K. BYERS, SPECI AL JUDGE