        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         FEBRUARY SESS ION, 1999         May 5, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

HOWARD GLENN HUMPHREY,            )   C.C.A. NO. 03C01-9807-CR-00231
                                  )
          Appe llant,             )
                                  )   HAMILTON COUNTY
V.                                )
                                  )
                                  )   HON. DOUGLAS A. MEYER, JUDGE
STATE OF TE NNE SSE E,            )
                                  )
          Appellee.               )   (POST-CONVICTION)



FOR THE APPELLANT:                    FOR THE APPELLEE:

LEROY PHILLIPS, JR.                   JOHN KNOX WALKUP
PHILLIPS & CAPUTO                     Attorney General & Reporter
312 Vin e Street
Chattanooga, TN 37403                 R. STEPHEN JOBE
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      WILL IAM H. C OX, III
                                      District Attorney General

                                      BATES W. BRYAN, JR.
                                      Assistant District Attorney General
                                      600 Market Street, Suite 310
                                      Chattanooga, TN 37402




OPINION FILED ________________________

REVERSED AND REMANDED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, How ard G lenn H ump hrey, a ppea ls as of r ight the trial cou rt’s

dismissal of his petition for post-co nviction relief. After a careful review of the record,

we reverse and reman d to the trial court for an evidentiary hearing on the grounds

raised in the petition and all amendment thereto.



       Petitioner was convicted in 1988 of first degree murder and assault with intent

to comm it first degree murde r. See State v. Howard Glenn Humphrey, C.C.A. No.

1111, Hamilton C ounty (Tenn. Crim. A pp., Kno xville, Dec. 28 , 1989), perm. to appeal

denied (Tenn. 1990).       He was se ntenced to life imp risonmen t plus five years

enhancement due to use of a firearm for first degree murder, and to a concurrent

twelve year se ntenc e for as sault with intent to commit first degree murde r. Id. His

convictions were affirmed on direct appeal to this Court, and the Tennessee

Supre me C ourt den ied perm ission to ap peal on April 2, 199 0. Id.



       Petitioner filed a pro se petition for pos t-conv iction re lief on A pril 30, 1992. On

August 4, 1992, he filed a pro se amendment to the petition, adding an additional

ground for relief based on a supreme court case decided shortly after his original

petition was filed. The State filed an answer to the petition on September 2, 1992,

and a supplemental answer on March 17, 1994. With the assistance of couns el,

Petitioner filed an amen ded petition on F ebruary 21, 1995, m erely setting forth

additional facts su pportin g the p reviou s claim of ineffe ctive as sistan ce of c ouns el.

The State subsequently filed an answer to the amended petition. The trial court

reset several evidentiary hearing dates for various reasons from December 1995

through February 1997. On February 27, 1997, the trial court entered an order

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holding all proceedings in the instan t case in abe yance until Ju ly 17, 1997, pending

resolution in the sup reme c ourt of Carter v. State, 952 S.W .2d 417 (Te nn. 1997).

On October 27, 1997, the trial judge dismissed the petition without conducting an

evidentiary hearing based on its finding that the petition was time barred under the

principles announced in Carter. Petition er filed a tim ely notic e of ap peal. In this

appe al, Petition er argu es, an d the S tate co nced es, tha t the trial c ourt er red in

dismissing his pe tition for p ost-co nviction relief with out co nduc ting an evidentiary

hearing .



       A panel of this Court affirmed Petitioner’s convictions a nd the supre me cou rt

denied perm ission to app eal on April 2, 1990. See Humphrey, C.C.A . No. 1 111, s lip

op. at 1. Under the Post-Con viction Act in effect at that time, P etitioner had three

years from the date of the final action o f the highe st state ap pellate co urt in whic h

to file for post-conviction relief. Tenn . Code An n. § 40-30-10 2 (repealed 1 995).

Petitioner filed his pro se petition for pos t-conv iction re lief on A pril 30, 1 992, w ell

within the three year limitatio ns period . Petitioner d id mak e two ad ditional filings,

both of which were amendments to his original petition.             He first filed a pro se

amendment setting forth an additional ground for relief based on a decision of the

supreme court released shortly after the filing of the original petition. After counsel

was appointed to assist Petitioner, he filed a second amended petition which set

forth no new ground s, but did o utline add itional facts s upporting the claim of

ineffective a ssistanc e of coun sel as alleg ed in the o riginal petition .



       In its order of dismissal, the trial court concluded that the petition was time

barred unde r the prin ciples anno unce d in Carter. 952 S.W.2d 417. It is abun dantly

clear from the record, however, that the original petition for post-conviction relief was

                                             -3-
timely filed. The additional filings were amendments to the original petition which

was timely filed. See, e.g., Terry D . Barber v . State, C.C.A. No. 02-C-01-9508-CC-

00210, Lake County (Tenn. Crim. App ., Jackson, Jun e 28, 1996 ), perm. to appeal

denied (Tenn . 1996).



      Based on the foregoing, we find that the trial c ourt er red in s umm arily

dismissing Petitioner’s petition for post-conviction relief without conducting an

evidentiary hearing.    Therefore, we remand this case to the trial court for an

evidentiary hearing.


                                ____________________________________
                                THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge

___________________________________
L. T. LAFFERTY, Senior Judge




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