        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                        FEBRUARY SESS ION, 1998             July 9, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
FRANCES BLAYLOCK,              )   C.C.A. NO. 03C01-9706-CR-00217
                               )
      Appe llant,              )
                               )
                               )   MCMINN COUNTY
VS.                            )
                               )   HON. JAMES C. WITT
STATE OF TENNESSEE,            )   JUDGE
                               )
      Appellee.                )   (Post-Co nviction Re lief)




FOR THE APPELLANT:                 FOR THE APPELLEE:

LAURA RULE HENDRICKS               JOHN KNOX WALKUP
Eldridge, Irving & Hendricks       Attorney General and Reporter
606 W. Main Street
Knoxville, TN 37901-0084           TODD R. KELLEY
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   JERRY N. ESTES
                                   District Attorney General

                                   STEVE HAWKINS
                                   10th Judicial District
                                   P. O. Box 647
                                   Athens, TN 37303



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                       OPINION

       Appellant Frances Blaylock appeals the trial court's denial of her petition

for post-c onvictio n relief.     Appellant presents the following issue for our

consideration on this appeal:           whether the trial court erred in dismissing

Appe llant's petition fo r post-co nviction relief.

       After a review of the record, we reverse the judgment of the trial court and

remand with directions to that court to consider Appellant's allegation of

ineffec tive ass istanc e of trial c ouns el.



                             I. FACTUAL BACKGROUND

       Appellant was convicted on January 18, 1987 by a jury in the McMinn

Coun ty Criminal Court of conspiracy to commit first degree murder and first

degree murder. She was sentenced to two concurrent life sentences with the

Tennessee Depa rtment o f Correc tion. This C ourt affirm ed the co nvictions. State

v. France s Blayloc k and R obert C hristian Sm ith, C.C.A. No. 152 , McMin n Cou nty

(Tenn. Crim. App., Knoxville, September 30), perm. to appeal denied, (Tenn.

1988). On December 4, 1990, Appellant filed a petition for post-con viction relief.

Counsel amended this petition on Februa ry 11, 1991. Following a hearing, the

trial court dismissed the petition on February 11, 1991 on the ground that the

allegations set forth in the petition had been previously litigated.       Although

Appe llant's counsel agreed to draw up an order stating the trial court's dismissal

and reasons therefor, no such order was entered. On November 8, 1996, the

trial court a ppoin ted the Public Defe nder's Office to represent Appellant. On

December 7, 1996, Appellant's new counsel filed an amendment to the

December 4, 1990 petition, as a mende d on Febru ary 11, 1991. In a nunc pro


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tunc order reflecting its earlier February 1 1, 1991 dism issal, the trial court

dismissed the petition on January 28, 1997.1



                              II. POST-CONVICTION RELIEF

        Appellant contends that the trial court erred in denying her petition for p ost-

conviction relief.

        In post-conviction proceedings, the Appellant bears the burden of proving

the allegations raised in the petition by a preponderance of the evidence.2

Tidw ell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Wa de v. State , 914 S.W.2d

97, 101 (Ten n. Crim. App . 1995). Moreo ver, the trial court's findings of fact are

conclusive on appea l unless the evidenc e prepo nderate s agains t the judgm ent.

Tidw ell, 922 S.W .2d at 500 ; Cam pbell v. State, 904 S.W.2d 594, 595-96 (Tenn.

1995); Coop er v. State , 849 S.W .2d 744, 746 (Tenn. 199 3).

        Appellant filed her first pe tition for post-conviction relief on December 4,

1990. This petition was filed by Attorney Ashley L. Ownby--an associate of

Appe llant's trial cou nsel, Mr. Conrad Finnel. In this petition, Appellant conceded

that "All questions raised in this petition have been raised unsuc cessfully in s tate

courts." See S tate v. Fran ces Bla ylock and Robe rt Christian Smith, C.C.A. No.

152, McMin n Cou nty (Ten n. Crim. A pp., Kno xville, Septe mber 3 0), perm. to

appeal denied, (Tenn. 1988). Mr. Finnel amended the December 4 petition on

February 11, 19 91.O n that s ame day, the trial cou rt dism issed the pe tition but

never entere d an o rder re flecting this dism issal.


   1
      Between the petition at issue in the present appeal and the nunc pro tunc order, Appellant filed a
second pro se petition for post-conviction relief on September 30, 1992. On December 1, 1992, the trial
court dism issed this secon d petition witho ut appoin ting coun sel or hold ing an evid entiary hea ring.
Because this petition is not the subject of the case sub judice, it is unnecessary to discuss it further.

   2
      For post-conviction claims filed after May 10, 1995, the petitioner must prove his factual allegations
by clear an d convin cing evide nce. Te nn. Cod e Ann. § 40-30-2 10(f). See als o Scott v. S tate, 936 S.W.2d
271, 272 (Tenn. Crim . App. 1996).

                                                   -3-
         Tenn. Code Ann. § 4 0-30-11 8(b) (199 5 Rep l.), which wa s in effect when

Appe llant's first petition was filed,3 provided, "Upon the final disposition of every

petition, the co urt sha ll enter a final order, and. . . shall set forth in the order or a

written memorandum of the case all grounds presented and shall state the

findings of fact and conclusions of law with regard to each such ground." Tenn.

Code A nn. § 40-30-1 18(b).

         On November 8, 1996, the trial cou rt appo inted th e Pub lic Defe nder's

Office to represent Appellant in filing a petition for post-conviction relief alleging

ineffective assistance of trial coun sel. An attorne y with the Public Defe nder's

Office filed the petition on December 7, 1996.                         In this petition, Appellant

incorporated by reference the earlier petition of December 4, 1990, as amended

on February 11, 1991. Additionally, this petition alleged that Attorney Conrad

Finnel rendere d inade quate re presen tation by failing to com ply with a trial court

order requiring that the prosecution be furnished with the identity of any expert

witnesses who had examined Appellant respecting claims of insanity. 4 By not

complying with this order, the petition alleges tha t Mr. Finnel deprived Appellant

of the opportunity to present expert testimony that she suffered from battered

woman syndrome at the time of the offense, and therefo re was not fully crimin ally

respo nsible for the homicide. The trial court held no e videntiary h earing to

consider Appe llant's in effective assista nce o f coun sel claim . On January 28,

1997, the trial court issued an order nunc pro tunc reflecting its February 11,

1991 d ismissa l of Appe llant's petition fo r post-co nviction relief.




  3
     Tenn. Code Ann. §§ 40-30-101 through 40-30-124 were repealed. The General Assembly enacted
the Pos t-conviction Proced ure Act o f 1995, c odified at T enn. Co de Ann . § 40-30 -201, et seq.

  4
      The State does not dispute Attorney Finnel's failure to comply with the trial court's order.

                                                    -4-
       The January 28, 1997 order does not set forth Appellant's allegations and

does not state the trial court's findings of fact and conclusions of law.

Additionally, Appellant's ineffective assistance claim has never before been

raised in any prior p ost-con viction petition. We find that Appellant's ine ffective

assistance of counsel claim has never been given a fair hearing and

consideration. We, therefore, remand to the McMinn County Criminal Court and

direct it to properly d ispose o f Appella nt's allegation of inadequate representation.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
WILLIAM B. ACREE, JR., SPECIAL JUDGE




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