 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                       AT KNOXVILLE                                 FILED
                   OCTOBER 1999 SESSION                            December 6, 1999

                                                                  Cecil Crowson, Jr.
                                                                 Appellate Court Clerk


JOHN PAUL SEALS,                *     C.C.A. # 03C01-9903-

CC-00114
      Appellant,                *     HAMBLEN COUNTY

VS.                             *     Hon. James E. Beckner, Judge

STATE OF TENNESSEE,             *     (Post-Conviction)
      Appellee.                 *




For Appellant:                        For Appellee:

Greg W. Eichelman                     Paul G. Summers
Office of the Public Defender         Attorney General and Reporter
Third Judicial District
1609 College Park Drive               Clinton J. Morgan
Morristown, TN 37813                  Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493
                                      John F. Dugger, Jr.
                                      Assistant District Attorney General
                                      510 Allison Street
                                      Morristown, TN 37814




OPINION FILED:__________________________



REVERSED AND REMANDED


GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The petitioner, John Paul Seals, entered a guilty plea to first degree

murder on December 12, 1988. The state had originally sought the death penalty.
The trial court imposed a life sentence. Six years later, the petitioner filed a petition

for writ of habeas corpus or, in the alternative, post-conviction relief. The trial court,

which treated the petition as one for post-conviction relief, dismissed based upon
the statute of limitations. This court affirmed on direct appeal. John Paul Seals v.

State, No. 03C01-9409-CR-00319 (Tenn. Crim. App., at Knoxville, Feb. 22, 1995),

perm. app. denied, (Tenn. 1995). On January 7, 1998, the petitioner filed this claim
for post-conviction relief alleging several constitutional violations. The petitioner

argued that the statute of limitations should not apply because he had been mentally

incompetent since before the commission of the offense. The petitioner also
contended that none of the grounds had been waived or previously determined

because the first petition had been filed by someone other than himself. The trial

court summarily dismissed the petition at the preliminary stage. See Tenn. Code

Ann. § 40-30-206(a), (f). In John Paul Seals v. State, No. 03C01-9802-CC-00050

(Tenn. Crim. App., at Knoxville, Jan. 6, 1999), this court reversed and remanded the
cause to the trial court to allow the petitioner to present evidence on the issue of his

mental capacity as it related to the statute of limitations:

               If the petitioner carries his burden of proving facts which
               require tolling the statute of limitations due to mental
               incompetence, then the trial court shall proceed to the
               merits of the constitutional issues presented in the
               petition. On the other hand, if the petitioner does not
               carry his burden of proving mental incompetence as
               regards the statute of limitations, the trial court shall
               dismiss the petition as untimely.

Id., slip op. at 8.



               The opinion of this court was filed January 6, 1999. Six days later, the

trial court appointed counsel for the petitioner. On March 1, 1999, the state made

application for permission to appeal the decision of this court. Tenn. Sup. Ct. Rule
11. Before any action was taken on the application by the supreme court, the Office

of the District Attorney General of Hamblen County filed a motion to dismiss in the

trial court on the following grounds:

                                             2
              5.     On July 26, 1988, Judge James E. Beckner
                     signed an order ... that defendant be evaluated by
                     Cherokee Mental Health Agency for the purpose
                     of determining his competency to stand trial, and
                     the mental state of the defendant at the time of
                     the commission of the alleged offense. The
                     Sheriff of Hamblen County was directed to
                     transport the defendant to the above facility and
                     the results were to be reported to this court.

              6.     The state submits that petitioner's allegations that
                     he was suffering from a "psychological
                     impairment" and that he has never been evaluated
                     is totally false. The original criminal court file,
                     Hamblen County No. 88CR286, contains a copy of
                     the mental evaluation report dated September 1,
                     1998 ... from Michael Moran, M.D., Staff
                     Psychiatrist....

              7.     Dr. Moran of the Cherokee Mental Health Center
                     evaluated Petitioner, John Paul Seals, for his
                     ability to stand trial and his mental state at the
                     time of the commission of the alleged offense of
                     first degree murder.

The 1998 report by Dr. Michael Moran was made a part of the record. Dr. Moran

had concluded that the petitioner "is capable of defending himself in a court of law.

He understands the nature of the legal process, the charges pending against him,

and the possible consequences. He seems able to advise his counsel and

participate in his own defense." The report also provided that the defendant did not

meet the test of insanity because he did not exhibit a mental illness or defect which
would impair his ability "to appreciate the wrongfulness of the ... offense, or ... to

conform his conduct to the requirement of the law."



              In response to the motion to dismiss, the petitioner, who was by then

represented by counsel, sought "a thorough and substantial psychological

evaluation" and requested an independent psychologist or psychiatrist. The
petitioner argued that Dr. Moran's conclusions, which were made on September 1,

1988, were incomplete and "not significant in making determinations with regard to

his present post-conviction petition." After a review of the pleadings, the trial court

concluded that the petitioner had failed "to carry his burden that he was mentally
incompetent as alleged in his petition." It ruled that the statute of limitations had not

been tolled and dismissed the petition.



                                            3
                   In this appeal of the order of dismissal, the petitioner first argues that

the case is not properly before this court because, at the time the briefs were filed,

our supreme court had taken no action on the application for permission to appeal.
In the alternative, the petitioner argues that the trial court did not, as required by the

order of remand, "afford the petitioner and the state the opportunity to present

evidence on the petitioner's mental capacity as it relates to the statute of limitations."
The state argues that the petitioner's participation in the hearing on the motion to

dismiss filed by the state constituted a waiver of the first issue.



                   On July 12, 1999, well before this case was placed on the docket, our

supreme court granted application for permission to appeal sought by the state.

Seven days later, separate counsel was appointed for the petitioner. On October 8,
1999, the supreme court directed that all proceedings should be stayed in both the

trial court and in this court pending the decision of the supreme court: "All

proceedings before the trial court or the Court of Criminal Appeals related to post-

conviction suit are hereby stayed pending this Court's decision in this appeal."1



                   These circumstances are similar to those in State v. Cash, 867 S.W.2d

741 (Tenn. Crim. App. 1993). In Cash, this court determined that the trial court

acted prematurely after the reversal of an aggravated kidnaping conviction and a
remand for a determination of whether the count had "been previously dismissed at

the election of the state." The opinion of our court was filed January 30, 1992. The

trial court reinstated the conviction on February 14, 1992, before receiving the
mandate from this court. In the meantime, the defendant had filed a timely

application for permission to appeal. Tenn. R. App. P. 11. The application was not

denied until May 4, 1992. Ten days later, a mandate was transmitted from this court

to the trial court. In Cash, this court ruled that the trial court had no jurisdiction to

act because this case was still in the appellate process. The order by the trial court

was deemed a nullity. Id., 867 S.W.2d at 747.



   1
       See John P aul Seals v. State , No. 03S 01-990 7-CC -00075 (Tenn ., at Knoxv ille, Oct. 8, 199 9).


                                                       4
              Rule 42(b), Tenn. R. App. P., provides as follows:

              Unless otherwise ordered by the Supreme Court, Court
              of Appeals, Court of Criminal Appeals, or a judge thereof,
              the timely filing of an application for permission to appeal
              in the Supreme Court shall stay the issuance of the
              mandate of the Court of Appeals or the Court of Criminal
              Appeals, which stay is effective until the final disposition
              by the Supreme Court. Upon the filing of an order of the
              Supreme Court denying the application for permission to
              appeal, the mandate shall issue immediately.


              Waiver, under these circumstances, would not apply as a defense for

the state. Because neither the Tennessee Supreme Court nor the Court of Criminal
Appeals authorized any proceedings in the trial court during the pendency of this

appeal, all actions taken in the trial court since January 6, 1999, are a nullity. It is so

ordered. Costs are adjudged against the State of Tennessee.


                                    ________________________________________
                                    Gary R. Wade, Presiding Judge

CONCUR:



________________________________
David H. Welles, Judge



________________________________
David G. Hayes, Judge




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