         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               Assigned on Briefs June 19, 2002

                 DONNIE W. FOULKS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Greene County
                          No. 01CR223     James E. Beckner, Judge



                                   No. E2002-00224-CCA-R3-PC
                                         October 9, 2002

The petitioner, Donnie W. Foulks, appeals the summary dismissal of his petition for post-conviction
relief. The post-conviction court, citing Tennessee Code Annotated section 40-30-202(c) (1997),
determined that the petitioner had previously filed a petition for post-conviction relief and was
therefore precluded from seeking relief in a second proceeding. Concluding that the post-conviction
court failed to consider that the petitioner’s first post-conviction petition was not resolved on the
merits, we reverse the judgment of the post-conviction court and remand for further proceedings.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
DAVID H. WELLES, J., joined.

Donnie W. Foulks, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; and C. Berkeley Bell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                            OPINION
                                     I. Factual Background
                In December 1996, the petitioner was convicted of second degree murder and
sentenced to twenty-five years in confinement. On August 17, 1998, this court affirmed the
petitioner’s conviction and sentence. State v. Donnie Wayne Foulks, No. 03C01-9705-CR-00194,
1998 Tenn. Crim. App. LEXIS 864 (Knoxville, Aug. 17, 1998). Following this court’s decision, the
petitioner’s counsel did not withdraw from further representation of the petitioner pursuant to
Tennessee Supreme Court Rule 14 and did not seek to appeal this court’s judgment to the supreme
court pursuant to Rule 11, Tennessee Rules of Appellate Procedure.

                On May 12, 1999, the petitioner filed a pro se petition for post-conviction relief and
asserted, among other grounds, that his counsel was ineffective for failing to notify the petitioner of
this court’s adverse decision and also for failing to file an application for permission to appeal to the
supreme court. The post-conviction court denied relief and the petitioner timely filed a notice of
appeal to this court on July 3, 2000. This court entered an order on July 2, 2001, which vacated and
reentered its judgment of August 17, 1998, “for the sole purpose of reinstating the time allowed for
the petitioner to seek second-tier appellate review in the Tennessee Supreme Court.” The order
further provided, “[t]he petition for post-conviction relief filed in trial court case no. 99CR079 and
the remaining claims raised therein shall be dismissed without prejudice.” On November 5, 2001,
the petitioner’s application for permission to appeal his conviction was denied by the Tennessee
Supreme Court.

                On December 31, 2001, the petitioner filed the present petition for post-conviction
relief, alleging ineffective assistance of counsel at trial and on appeal. On January 11, 2002, the
post-conviction court summarily dismissed the instant petition, citing Tennessee Code Annotated
section 40-30-202(c) and concluding that because the petitioner had previously filed a petition for
post-conviction relief on May 12, 1999, he was precluded from filing the instant petition.
Furthermore, the petitioner’s motion to reconsider was denied on January 18, 2002. The petitioner
timely appealed the post-conviction court’s ruling, alleging that because his first petition for post-
conviction relief was not decided on its merits, the post-conviction court erred in dismissing his
second post-conviction petition. The State concedes that the trial court erred in summarily
dismissing the petition on the basis of Tennessee Code Annotated section 40-30-202(c). We agree.

                                            II. Analysis

                 Generally, the Post-Conviction Procedure Act provides for the filing of only one
petition for post-conviction relief. Tenn. Code Ann. § 40-30-202(c) (1997). However, when a
petitioner is granted a delayed appeal through post-conviction proceedings, this court has concluded
that any other allegations in the petition should be dismissed without prejudice pending the direct
appeal. Hughes v. State, 77 S.W.3d 801, 802 (Tenn. Crim. App. 2001). In Gibson v. State, 7
S.W.3d 47, 50 (Tenn. Crim. App. 1998), this court provided guidance to the post-conviction court
when addressing petitions in which the request for a delayed appeal has been consolidated with an
attack on the conviction. This court concluded:
                 the better procedure is for the trial court to grant the delayed appeal,
                 when warranted, and dismiss the collateral attack upon the conviction
                 without prejudice. We are cognizant of the statutory provision which
                 contemplates the filing of only one petition for post-conviction relief
                 from a single judgment. Tenn. Code Ann. § 40-30-202(c). This
                 statute provides that if a petition has been resolved on its merits, a
                 subsequent petition must be summarily dismissed. Tenn. Code Ann.
                 §§ 40-30-202(c); 40-30-206(b). Conversely, we interpret this to
                 mean that those petitions not resolved “on their merits” are not
                 subject to dismissal. [Id.] This procedure would allow the [petitioner]
                 to pursue his post-conviction relief after review from the supreme
                 court.
Id.


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                Although the petitioner filed two petitions for post-conviction relief, the first was
clearly not determined on its merits. As noted, this court’s order of July 2, 2001, dismissed the first
petition for post-conviction relief without prejudice and provided that the petitioner would be
allowed “to pursue post-conviction relief following review by the supreme court.” Therefore, we
conclude that the post-conviction court erred in summarily dismissing the petitioner’s claim for
relief. The post-conviction court is required to review the petition on its merits in accordance with
Tennessee Code Annotated section 40-30-209 (1997).

                                          III. Conclusion

              Accordingly, the judgment of the post-conviction court is reversed and this matter is
remanded for further proceedings consistent with this opinion.




                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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