# FILED
October 16, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1998

HANSON L. D

AVIS, )

) No. 02C01-9804-CC-00104 Appellant ) ) MADISON COUNTY vs. ) ) Hon. Franklin Murchison, Judge STATE OF TENN ESSEE, ) ) (Writ of Error Coram Nobis) Appellee )
For the Appellant : For the Appellee : Hanson L. Davis , #126095, Pro Se John Knox Walkup Cold Creek Correcti onal Attorney General and Repor ter Box 1000 Henning, TN 38041 Georgia Blythe Felner Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493 James G. (Jerry) Wo

odall District Attorney General Al Earls Asst. District Attor

ney General P. O. Box 2825 Jackson, TN 38302

OPINION FILED: APPEAL DISMISSED
David G. Hay

es Judge2 ORDER
The appellan t, Hanson L. Davis, proceeding pro se, appeals from the voluntary dismissal of his petition for writ of error coram nobis in the Madison County Circuit Court. Fin ding that this cause is not properly before this c ourt, the appellant’s appeal is dismi ssed.

Procedural Background
The present action stems from the appell ant’s 1989 convictions for aggravated rape, aggravated kidnapping, and assault. The convictions were affirmed on direct appeal to this c ourt. See State v. Davis , No. 7 (Tenn. Crim. App. at Jackson, Jan. 3, 1990). In November 1990, the appellant fil ed his first petition for post-conviction relief alleging ineffective assistance of counsel. The trial court’s subsequent dismissal of this petition was affirmed on appeal by this court. See Davis v. State , No. 02C01-9104-CC-00064 ( Tenn. Crim. App. at Jackson, Apr. 8, 1992), perm. to appeal denied , (Tenn. June 22,1992), reh’g denied , (Tenn. 1995). A second post-convicti on petition was filed on Nov ember 16, 1994. This petition was summarily dismissed by the trial court on November 29, 1994. Again, this court affirmed the trial court’s dis missal of the appellant’s petit ion. Davis v. State , No. 02C01-9605-CC-00144 (Tenn. Cr im. App. at Jackson, Mar. 11,1997), perm. to appeal denied , (Tenn. Jul. 21, 1997).
On March 17, 1997, the appellant filed a petition for writ of error coram nobis alleging newly

discovered evidence in the form of the victim’s r ecantation of her previous statements and test imony. On March 2, 1998, the trial court granted the1 We note that, in hi s brief, the appell ant’s chal lenges are based upon alleged ethical violat ions committed by the prosecutor and defense counsel’ s obligat ion to pr otect the appellant from the prosecutor

’s improper conduct . These issues are not cognizable in a writ of error coram nob is , see Tenn. Code Ann.40-26-10 5(1997), and ar e contrary

to the cl aim raised i n the appellant’s peti tion. 3 appellant’s oral motion to withdraw his petition. The appellant now appeals from this withdrawal. 1
Analysis
The law is well-established that a defendant may not appeal from a voluntary withdrawal of his pet ition. See Finney v. State , No. 01C01-9610-CR-00417 ( Tenn. Crim. App. at Nashvil le, Sept. 30, 1997). An appeal as of right by a criminal defendant only lies from a final jud gment entered by the trial court. Tenn. R. App. P. 3(b). A judgment is final “when it decides and di sposes of the whole merits of the case leaving nothing for the further judgment of the court.” Richards on v. Tennessee Brd. of Denistry . 913 S.W.2d 446, 46 0 (Tenn. 1995); Saunder s v. Metropolitan Gov’t of Nas hville & Davidson County , 383 S.W.2d 28, 31 (Tenn. 1964). In other words, a judgment is final if it deci des the controversy between the parties on the merits and fix es their rights so tha

t, if the judgment is affirmed, nothing remains for the tria l court to do but to proceed w ith its execution. See State v. Arms , No. 01C01-9511-CC-00374 ( Tenn. Crim. App. at Nashvi lle, Sept. 5, 1996). In the present case, there is no adjudication on the merits of the appellant’s petition for writ of error coram nobis as the trial court merel y granted the appellant’ s oral motion to voluntarily

withdraw the same. A ccordingly, this court is without the authority to resolv

e the petition on its merits

. See Tenn. R. App. P. 36(a) (“r elief may not be granted in contr avention of the province of the trier of fact”). Additionally, appellate relief need not be granted to a party who fails to take whatever action is reasonably availabl e to prevent or nullify the harmful effect of error. Tenn. R. App. P. 36(a) . Accordingly, the appellant’s failure to present the4

issue to the trial court , by voluntarily removing his petiti on, denies him appellate review. Id

. For the foregoing reasons , this appeal is dismisse d. It appearing that the appellant is indigent, the costs of this appeal wil l be paid by the State of Tennessee.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

____________________________________ JOHN H. PEAY, Judge

____________________________________ L. T. LAFFERTY, Senior Judge