        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 1, 2015

                    JAMES FITZ v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 0806533, 0806534    W. Mark Ward, Judge




             No. W2014-02452-CCA-R3-PC - Filed September 18, 2015
                        _____________________________

Petitioner, James Fitz, pleaded guilty to first degree murder, attempted rape, especially
aggravated kidnapping, and theft of property valued over $1,000 but under $10,000. He
received an effective sentence of life imprisonment. Subsequently, he filed a petition for
post-conviction relief, which he later withdrew. More than four years after his guilty
plea, petitioner filed a second petition for post-conviction relief. The trial court
summarily dismissed the petition as untimely and alternatively as a failed motion to re-
open post-conviction proceedings. Following our review, we conclude that petitioner’s
notice of appeal was not timely and dismiss his appeal.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROGER A. PAGE, J., delivered the opinion of the Court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.

James Fitz, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; and Amy P. Weirich, District Attorney General, for the Appellee, State
of Tennessee.


                                          OPINION

                                          I. Facts

       On October 2, 2008, petitioner was indicted in case number 08-06533 for murder
in the perpetration of an attempted rape, murder in the perpetration of a kidnapping,
premeditated murder, attempted aggravated rape, and especially aggravated kidnapping.
On May 19, 2010, petitioner entered a negotiated plea of guilty to murder in the
perpetration of attempted rape, attempted rape, and especially aggravated kidnapping.
Pursuant to the plea agreement, petitioner also pleaded guilty to theft of property valued
over $1,000 but less than $10,000 in case number 08-06534. Petitioner received a life
sentence for the murder conviction and concurrent sentences of ten years for attempted
rape, fifteen years for especially aggravated kidnapping, and two years for theft of
property. The record does not include a factual basis for petitioner’s pleas.

        On March 17, 2011, petitioner filed his first petition for post-conviction relief. The
trial court appointed counsel and set an evidentiary hearing; however, petitioner withdrew
his petition on November 21, 2011. Petitioner filed a motion to re-open post-conviction
proceedings on October 3, 2012, which he withdrew on November 7, 2012.

        Petitioner filed the instant petition for post-conviction relief on October 2, 2014,
arguing, inter alia, that due process concerns, namely his alleged mental incompetence,
should toll the statute of limitations. The trial court treated petitioner’s filing as both a
petition for post-conviction relief and as a motion to re-open post-conviction proceedings.
On October 10, 2014, the trial court summarily dismissed the petition as untimely,
stating, “Passing reference to his alleged mental [condition] does not show that he is
entitled to tolling[.]” The trial court further determined that if treated as a motion to re-
open post-conviction proceedings, the filing “fail[ed] to plead proper matters which
would allow the reopening.” Petitioner subsequently filed an untimely notice of appeal
with the appropriate individual at the correctional facility on November 11, 2014. See
Tenn. Sup. Ct. R. 28, § 2(G); Tenn. R. Crim. P. 49(c).

                                        II. Analysis

                          A. Petition for Post-Conviction Relief

       Petitioner filed his notice of appeal more than thirty days after the trial court’s
ruling. “In an appeal as of right to the . . . Court of Criminal Appeals, the notice of
appeal required by Rule 3 shall be filed with and received by the clerk of the trial court
within 30 days after the date of entry of the judgment appealed from[.]” Tenn. R. App. P.
4(a).

       Notwithstanding, if petitions are “prepared by or filed on behalf of a pro se
       petitioner incarcerated in a correctional facility and are not received by the
       clerk of the court until after the time fixed for filing, filing shall be deemed
       timely if the papers were delivered to the appropriate individual at the
       correctional facility within the time fixed for filing.”

                                             -2-
Paul v. State, 75 S.W.3d 926, 928 (Tenn. 2001). Unlike the procedure involving the
motion for new trial, the time for filing the notice of appeal to this court is not
jurisdictional. See Tenn. R. App. P. 4(c); see also State v. Dodson, 780 S.W.2d 778, 780
(Tenn. Crim. App. 1989). This court may waive the notice of appeal time requirement in
the “interest of justice.” Tenn. R. App. P. 4(a). Petitioner has made no attempt to argue
that waiver of the time requirement is in the interest of justice in his case; rather, he
asserts that his notice of appeal was timely. After reviewing the record in this case, we
conclude that the interest of justice does not require waiver of the time requirement.
Therefore, we dismiss his appeal.

                   B. Motion to Re-Open Post-Conviction Proceedings

       If this court were to treat appellant’s filing as a motion to re-open post-conviction
proceedings, we would still be required to dismiss his appeal. When seeking review of a
post-conviction court’s denial of a motion to reopen, a petitioner shall file, within thirty
days of the lower court’s ruling, “an application in the court of criminal appeals seeking
permission to appeal.” Tenn. Code Ann. § 40-30-117(c) (emphasis added); Tenn. Sup.
Ct. R. 28, § 10(B). Under the statute, an appeal from the denial of a motion to reopen is a
discretionary appeal, not an appeal as of right. Fletcher v. State, 951 S.W.2d 378, 382
(Tenn. 1997). The application for permission to appeal shall include copies of all
documents filed by both parties in the trial court and the order denying the motion. Tenn.
Code Ann. § 40-30-117(c); see Tenn. Sup. Ct. R. 28, § 10(B). While the Tennessee
Supreme Court has held that a pleading entitled “notice of appeal” can be treated as an
application for permission to appeal, it “must include the date and judgment from which
the petitioner seeks review, the issue which the petitioner seeks to raise, and the reasons
why the appellate court should grant review.” Graham v. State, 90 S.W.3d 687, 691
(Tenn. 2002).

        To obtain review of the post-conviction court’s order, a petitioner must comply
with the statutory requirement in Tennessee Code Annotated section 40-30-117(c). A
petitioner’s failure to comply with those requirements deprives this court of jurisdiction
to consider the matter. Because petitioner has failed to comply with the statutory
requirements by filing a notice of appeal with the clerk of the trial court rather than an
application for permission to appeal with the Court of Criminal Appeals, we are without
jurisdiction to review this matter as an appeal of a denial of a motion to re-open a petition
for post-conviction relief. See Salvatore Pisano, Jr. v. State, No. W2011-02535-CCA-
R3-PC, 2012 WL 5507328, at *3, (Tenn. Crim. App. Nov. 13, 2012); Eric Carter v.
State, No. W2008-00957-CCA-R3-PC, 2008 WL 4936719, at *2 (Tenn. Crim. App. Nov.
19, 2008); Timothy Roberson v. State, No. W2007-00230-CCA-R3-PC, 2007 WL
3286681, at *9 (Tenn. Crim. App. Nov. 7, 2007). See also Graham, 90 S.W.3d at 689
(noting that the petitioner filed his document entitled “Notice of Appeal” with the clerk of
the Court of Criminal Appeals). Petitioner failed to timely present the issue concerning
                                            -3-
his post-conviction proceeding before a court of competent jurisdiction. In addition, the
content of the notice of appeal did not meet the other requirements of Graham. Graham,
90 S.W.3d at 691. Therefore, as an appeal from the trial court’s denial of petitioner’s
motion to re-open post-conviction proceedings, petitioner has not properly presented the
matter to this court.

                                     CONCLUSION
      Following our review of the record, the briefs of the parties, and the applicable
law, we dismiss petitioner’s appeal for failure to follow procedural requirements.


                                                 _________________________________
                                                 ROGER A. PAGE, JUDGE




                                           -4-
