            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                          APRIL 1998 SESSION
                                                        May 28, 1998

                                                   Cecil W. Crowson
KEITH DOUGLAS WOOTEN,            *                Appellate Court Clerk
                                       C.C.A. # 01C01-9703-CR-00111

             Appellant,          *     WILSON COUNTY

VS.                              *     Hon. J.O. Bond, Judge

STATE OF TENNESSEE,              *     (Post-Conviction; Armed Robbery)

             Appellee.           *




For Appellant:                   For Appellee:

Peter B. Halverstadt             John Knox Walkup
Attorney at Law                  Attorney General and Reporter
P.O. Box 158521
Nashville, TN 37215              Elizabeth B. Marney
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 David Durham
                                 Assistant District Attorney General
                                 111 Cherry Street
                                 Lebanon, TN 37087




OPINION FILED:__________________________




JUDGMENT IN C.C.A. NO. 01C01-9303-CR-00078
VACATED AND REINSTATED




GARY R. WADE, JUDGE
                                        ORDER

              On March 16, 1989, the petitioner was convicted of two counts of

armed robbery. The trial court imposed concurrent, Range II sentences of thirty-five

years on each count. Because the convictions were pursuant to a plea agreement,

there was no direct appeal.



              Thereafter, the petitioner filed a petition for post-conviction relief

alleging as grounds that his counsel had performed ineffectively. The trial court

denied the claim and, on direct appeal, this court affirmed. Keith Douglas Wooten v.

State, No. 01C01-9303-CR-00078 (Tenn. Crim. App., at Nashville, July 22, 1993).

After a review of the record, this court concluded that the petitioner, who was "no

stranger to the criminal justice system," had as his "motivation to plead guilty ... his

fear of consecutive sentences." Id., slip op. at 4. The determination of the court

was that the petitioner "appreciated the fact that his convictions would not increase

the total amount of time he would serve" due to sentences for other crimes. Id.



              Counsel for the petitioner withdrew after the entry of the July 22, 1993

opinion. Due to clerical error, the petitioner was notified that the time to file an

application for permission to appeal was September 20, 1993, rather than August

21, 1993. A pro se application for permission to appeal, filed September 17, 1993,

was rejected by our supreme court as untimely.



              On October 18, 1994, the petitioner filed a petition for writ of habeas

corpus in the United States District Court for the Middle District. Our state attorney

general sought a dismissal on the basis that the petitioner had not exhausted his

state remedy. The state contended that the petitioner would be entitled to a delayed

appeal because he had been denied the opportunity of second tier review in the


                                            2
Tennessee Supreme Court. The District Court dismissed the petition on that basis.



              On October 11, 1995, the petitioner filed this petition for post-

conviction relief seeking second-tier review of our July 22, 1993, opinion. The trial

court ruled that it was without authority to grant the relief and dismissed the petition.

Additional pleadings seeking relief from the order of dismissal were unsuccessful

and this appeal followed.



              The state has conceded in oral argument that an appropriate remedy

is an order vacating and reinstating the July 22, 1993, opinion of this court. It is so

ordered. But see Darrel D. Hayes v. State, No. 01C01-9604-CR-00163 (Tenn. Crim.

App., at Nashville, Sept. 2, 1997). The petitioner may now seek a review under the

terms of Rule 11 of the Tennessee Rules of Appellate Procedure.



              Costs are adjudged to the state.



                                           ________________________________
                                           Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
L.T. Lafferty, Special Judge




                                            3
