         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

               ANTHONY D. FORSTER v. STATE OF TENNESSEE

                               Criminal Court for Davidson County
                                         No. 200-B-1181



                      No. M2004-00452-CCA-R3-PC - Filed July 22, 2005


                                               ORDER

        In an opinion filed June 24, 2005, this court affirmed the trial court's dismissal of the
petitioner's petition for post-conviction relief, concluding that the single issue presented in the
petition, whether the waiver of the right to counsel was voluntary, had been previously determined
by this court on direct appeal. On July 11, 2005, the petitioner, Anthony Forster, filed a petition to
rehear pursuant to Tennessee Rule of Appellate Procedure 39. He complains that this court
misapprehended a material fact and that this court ruled on an issue upon which the parties had not
been heard. He asserts that this court erred by concluding that the issue had been previously
determined because the propriety of this court's opinion on direct appeal had not been addressed.
Further, he contends that the parties were not heard on the issue because the state in its brief asserted
that the issue had been waived and did not address the merits of the claim.

         The claim presented by the petitioner in his original petition for post-conviction relief was
that his waiver of the right to counsel was not voluntary. As noted in this court's opinion, this issue
was decided by this court in the petitioner's direct appeal. State v. Anthony D. Forster, M2002-
00008-CCA-R3-CD (Tenn. Crim. App., at Nashville, Apr. 1, 2003), slip op. at 7-8, 10-11. If the
petitioner intended to contest the propriety of that decision, the proper avenue would have been
through an application for permission to appeal to our supreme court, see Tenn. R. App. P. 11, and
not a petition for post-conviction relief.

        Finally, the petitioner's claim that the parties were not heard is without merit. Both the
petitioner and the state were given the opportunity to address the claim on direct appeal and on
appeal of the dismissal of the post-conviction petition. That the state asserted that the claim had
been waived does not mean that they were not heard.

        Accordingly, the petition to rehear is DENIED.



                                                        PER CURIAM
