# FILED April 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUARY 1999 SESSION

ROCKY LEE COKER, ) ) C.C.A. NO. 01C 01-9804-CC-00152 Appellant, ) ) SEQUATCHIE COUNTY VS. ) ) HON. WILLIAM S. RUSSELL, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: ROBERT S. PETERS JOHN KNOX WALKUP 100 First Ave., Southwest Attorney General & Repor ter Winchester, TN 37398 -and- DARYL J. BRAND JOSEPH E. FORD Asst. Attorney General 17 South College St. John Sevier Bldg. Winchester, TN 37398 425 Fifth Ave., North Nashville, TN 37243-0493 J. MICHAEL T

AYLOR District Attorney General 265 Third Ave., Suite 300 Dayton, TN 37321

OPINION FILED:____________________

APPEAL DISMISSED JOHN H. PEAY, Judge2 

### O P I N I O N

The petitioner, who was convicted of

first-degree murder and sentenced to death, petitioned for post-convi ction relief. The post-conv iction c ourt g ranted relief in part, dismissed the balance of the petition, and remanded for resentencing. Follo wing the resent enci ng hearing, the petitioner appealed. We dismiss the defendant’s appeal because it was not timely perfected.

In 1989, the petitioner filed a pro se petition for post-convic tion relief allegingineffective assistance of counsel in both the guilt and penalty phases of his trial. Although he was appoin ted counsel, no amended petition w as filed, but after three p etitioner-requested

continuances, the parties met w ith the post-convicti on court to narrow the issues and “discuss the proper procedure of this ca se.” At this meeting, counsel for the petitioner represented to the post-conviction cour t that a review of

the trial transcript

would establish the ine ffec tiveness of the petitioner’s trial counsel. By agreement of the parties, the post- conviction court judge read the trial transcripts, after which he entered a written order dated April 22, 1996. In this order, the post-conviction court dismissed the petitio n to the extent it challenged the conviction, finding that all issues had been previously determi ned or waived or w ere facially without

merit. Finding that the petitioner’s sentencing hearing was “fatally flawed,” however, the post-conviction court sustained the petition to the ex tent it challenged the sentenc e and remanded it for a new sentencing hearing. No appeal was taken from this April 1996 order.

Nearlyone month late r, the Tenness ee Supreme

Court appointed the postconviction court judge to pre side over the peti tioner’s resent encing h earing. T he defendant waived hi s right to have a jur y set his sentence, and a nonj ury resentencing3

hearing was held in August 1996. In a written order f iled in Septem ber 1996, the ju dge sentenced the petitioner to life impri sonment. Within thirty days, the petitioner, through appointed counsel, filed a notice of appeal “from the final j udgment entered in this acti on on the 18th day of September, 1996.”

In his brief, the petitioner ar gues that the trial cour

t erred by not conducting a full and complete hearing on tha t portion of the petition that raised issues concerning the guilt phase of the petitioner ’s trial. His arg umen t, the n, does not challenge the September

1996 resentencing order, even though his notice of appeal s tates he i s appealing that order. See T.R.A.P. 3(f)(stating that the notice of appeal “shall designate the judgment from which relief is sought”). Rather, his argument challenges the April 1996 order that dismissed w ithout a hearing the porti on of the petition that challenged his conviction.

Adefendant may appeal as of r ight from a final judgment in a postconv iction proceeding. T.R.A.P. 3(b) . The petitioner treats the Sept ember 199 6 resentencing order asif it were the finaljudgment in his post-conv iction proceeding, but this order is not a product of th e post-co nvi ction proceeding. The petiti oner’s postconviction case wasconcluded when the court ent ered the April 1996 order tha t granted post-convictionrelief in part and dismissed the balance of the petition. See T.C.A. § 40- 30-122 (1990)(repealed 1995)(“The order granting or denying relief under the provisions of this chapter shall be deemed a final judgment, and an appeal may be taken to the court of criminal appeals in the manner prescribed by the

Tennessee Rules of Appellate Procedure.”). Because the April 1996 order was the final judg ment in his post-convic tion proceedin g, the pet itioner should have filed a notice of appeal within thi rty days of that order, rather than the September 1996 order, if he wished to appeal the post-convicti on4

court’s ruling on his petition for post-convic tion relief. T.R.A.P. 4(a).Although timely fili ng of a notice of appeal is not juris dictional in criminal cases, the petitioner has not shown how waiving timely

perfection of his appeal would be i n the int erest of justice. See T.R.A.P. 4(a). According ly, his appeal is dis missed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ JERRY L. SMITH, Jud ge