FILED

October 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

HEARD IN DYERSBURG

VICTOR JAMES CAZES ) FOR PUBLICATION

)

Appellant ) FILED: OCTOBER 26, 1998 

)

v. ) SHELBY COUNTY 

)

STATE OF TENNESSEE ) HON. L. T. LAFFERTY, JUDGE

 )

 Appellee ) NO. 02-S-01-9707-CR-00064

For Appellant: For Appellee:

PETER D. HEIL JOHN KNOX WALKUP

Nashville, TN Attorney General and Reporter

MICHAEL E. MOORE

Solicitor General

ELIZABETH T. RYAN

Assistant Attorney General

Nashville, TN

WILLIAM L. GIBBONS

District Attorney General

JOHN W. CAMPBELL

Assistant District Attorney General

Memphis, TN

OPINION

AFFIRMED BIRCH, J.
1Oral argument was heard in this case on March 4, 1998, in

Dyersburg, Dyer County, Tennessee, as part of this Court’s

S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students)

project.

2

We granted Victor James Cazes’s application for

permission to appeal, pursuant to Tenn. R. App. P. 11,1 to

determine whether the dismissal with prejudice of a post-conviction

petition bars consideration of a subsequent one. We conclude that

the dismissal with prejudice compels dismissal of a later petition

that is predicated on grounds in existence prior to the dismissal

of the former petition. 

The appellant was convicted of aggravated rape, assault

with intent to commit first-degree murder, and second-degree

burglary. The Court of Criminal Appeals affirmed the convictions,

and we denied permission to appeal on August 5, 1991. 

The petition before us is the appellant’s fourth. The

trial court permitted him to withdraw the first two petitions

without prejudice. When, however, he requested permission to

withdraw the third petition, the trial court held a hearing and

explained to Cazes that he could not regard his petition in such a

whimsical or cavalier manner. While acting abusively toward the

trial court and his counsel, Cazes demanded that the trial court

permit withdrawal of the petition. Consequently, the trial court

dismissed the third petition with prejudice.

On motion by the State, the trial court also dismissed

the present petition, the appellant’s fourth. The court based the
2The Post-Conviction Procedure Act of 1995, Tenn. Code Ann. §

40-30-201 et seq., has replaced the old Act. Tennessee Code

Annotated § 40-30-209(c) (1997) provides that a petitioner may

withdraw a petition at any time prior to the hearing without

prejudice to any rights to refile. In addition, petitioners are now

limited by a shorter statute of limitations, which provides one year

after final action is taken on a case for the filing of postconviction petitions. Tenn. Code Ann. § 40-30-202(a) (1997). These

provisions appear to preclude the issue in this case from occurring

under the new law. 

3

dismissal, in part, on the fact that the third petition was

dismissed with prejudice. The court also found that several issues

were either waived or previously determined under Tenn. Code Ann.

§ 40-30-112 (1990) (repealed). The Court of Criminal Appeals

affirmed, holding that “[t]he dismissal of the appellant’s prior

suit with prejudice effectively ended the appellant’s right to file

additional suits for post-conviction relief predicated upon grounds

occurring prior to the time of the dismissal.” Whether the prior

dismissal with prejudice compels the dismissal of the present

petition is a question of law which we review de novo. See State

v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997). 

This case is governed by the now-repealed Post-Conviction

Procedure Act, Tenn. Code Ann. § 40-30-101 et seq. (1990).2 Under

Tenn. Code Ann. § 40-30-115(a) (1990) (repealed), the trial court

may permit a petitioner to withdraw a post-conviction petition at

any time prior to entry of judgment. Therefore, the permitted

withdrawal of a post-conviction petition does not necessarily

preclude the later filing of another petition for post-conviction

relief. Williams v. State, 831 S.W.2d 281, 282 (Tenn. 1992) (“A

defendant who, with leave of court, voluntarily withdraws a postconviction petition may later reinstitute that petition or
3By this ruling we do not intend to foreclose relief allowable

under the due process clauses of the state and federal

constitutions. See, e.g., Burford v. State, 845 S.W.2d 204, 207

(Tenn. 1992). 

4

substitute a new petition for it, without fear of being denied

adjudication on the merits." (emphasis added)); Albert v. State,

813 S.W.2d 426, 427-28 (Tenn. 1991). 

However, the right to file and withdraw post-conviction

petitions is limited:

If, for example, the trial judge

discerns that a litigant is abusing

the post-conviction process by

filing successive petitions and

seeking repeated withdrawals, or is

otherwise acting in bad faith,

dismissal of the action for failure

to prosecute, with prejudice to the

appellant's right to refile the

petition, would be proper.

Williams, 831 S.W.2d at 283. Thus, while trial courts have

authority under Tenn. Code Ann. § 40-30-115(a) to permit withdrawal

without penalty, that statute does not require courts to suffer

interminable bad faith conduct. The implication in Williams is

that a post-conviction petition may be barred where a prior

petition was dismissed with prejudice or where the petitioner acted

in bad faith.

Today we hold what in Williams we implied: the dismissal

with prejudice of a post-conviction petition will bar any

subsequent petition for post-conviction relief predicated on

grounds in existence prior to the dismissal.3 The rationale is

simple: post-conviction relief is a statutory remedy offered by
5

the legislature; it is not a constitutional right. Those who abuse

the process cannot be heard to complain when access to the remedy

is denied. 

Applying these criteria here, we find that the petition

before us does not raise any new issue. Instead, the issues were

either previously raised or could have been raised. Consideration

of this post-conviction petition is therefore barred. Because this

issue is dispositive, we see no reason to address the merits of the

petition. Accordingly, we affirm the judgment of the Court of

Criminal Appeals and the petition is dismissed.

_______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, JJ.