      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE                 FILED
                       MARCH 1996 SESSION
                                                          June 25, 1996

                                                       Cecil Crowson, Jr.
                                                        Appellate Court Clerk



STATE OF TENNESSEE,             )
                                ) C.C.A. No. 03C01-9509-CC-00260
      Appellant,                )
                                ) Knox County
V.                              )
                                ) Hon. Mary Beth Leibowitz, Judge
                                )
ROBERT BUTLER,                  ) (State Appeal -- Dismissal of Indictment)
                                )
      Appellee.                 )




FOR THE APPELLEE:                  FOR THE APPELLANT:

Robert W. Ritchie                  Charles W. Burson
Wade V. Davies                     Attorney General & Reporter
Ritchie, Fels & Dillard, P.C.
606 W. Main Street, Suite 300      Darian B. Taylor
P.O. Box 1126                      Assistant Attorney General
Knoxville, TN 37901-1126           Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Randall E. Nichols
                                   District Attorney General

                                   Robert Jolley
                                   Asst. Dist. Attorney General
                                   City-County Building
                                   Knoxville, TN 37902




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                           OPINION


          Nearly twenty years ago, the appellee was convicted of rape and

sentenced to life imprisonment. In 1993, he was granted habeas corpus relief in

federal court. In 1995, a Tennessee trial court dismissed the appellee's

indictment. The state appeals and argues that the trial judge abused her

discretion in dismissing the indictment. We find no abuse of discretion and

affirm.



                                               FACTS



          On July 21, 1993, a District Court granted the appellee habeas corpus

relief. The order provided that:



          The state shall have 60 days in which to schedule a new trial,
          failing which, all charges against the petitioner will be dismissed.
          Pending such new trial and/or appeal to the Court of Appeals of
          this order, unless stayed, the petitioner shall be admitted to
          personal recognizance bond in the amount of $10,000.00.



The state appealed the issuance of habeas corpus relief to the Sixth Circuit. On

appeal, the state raised two issues:



          1. Whether the appellee's petition was an abuse of writ, and

          2. Whether the appellee received ineffective assistance of counsel
          during his second trial.




          Prior to the Sixth Circuit's disposition, the state moved the District Court

for "a stay pending appeal." The motion was denied. The state subsequently

moved the Sixth Circuit to "stay the district court's order releasing the petitioner

and order the petitioner returned to custody."1 On August 11, 1993, the Sixth



          1
        The state did not, however, request the Sixth Circuit to stay or hold the 60-day period in
abeyance pending resolution of appeal.

                                                  -2-
Circuit denied the state's motion for a stay of the appellee's release from

incarceration. On February 22, 1995, the Sixth Circuit affirmed the District

Court's issuance of habeas corpus relief. Mandate was issued on March 16,

1995.



        On May 1, 1995, the state requested a Tennessee state court to docket

appellee's case for retrial. The appellee responded with a Motion to Dismiss

asserting that: (1) on July 21, 1993, the District Court granted the state 60 days

within which to schedule a new trial, "failing which, all charges" would be

dismissed; (2) the order was not stayed; (3) the state's time within which to

reschedule a new trial had elapsed; and (4) the state was, therefore, barred

from retrying him. The state's posture was that the 60 days were held in

abeyance until issuance of the Sixth Circuit's mandate on March 16, 1995.



        The Tennessee trial court granted the appellee's motion finding:



             It is the ruling of the Court that the original mandate to retry
        the defendant as of July 21, 1993 was in full force and effect and
        never stayed. There was no effort made either to dismiss this case
        or schedule it for trial and at this point the Court is obliged to
        dismiss the defendant's case pursuant to the orders of the United
        States District Court for the Middle District of Tennessee and
        subsequent affirmation of the Sixth Circuit Court of Appeals.

            IT IS THEREFORE ORDERED that the above captioned
        cause be dismissed for failure of timely scheduling of a new trial.



The trial judge, however, declined to rule as to whether the state was barred

from re-indicting the appellee. The instant appeal proceeds from this dismissal.



        During the interim of this appeal, the state filed a Fed. R. Civ. P., Rule 60,

motion in the District Court. The motion sought relief from the 1993 order "to the

extent that it purport[ed] to bar the State from re-trying the Petitioner." In the

alternative, the state requested a clarification of the 1993 order. The District

Court denied the state's request for relief and noted that the state was improperly

                                          -3-
attempting to use Rule 60 to raise an issue that should have been raised on

direct appeal. In addressing the state's alternative request for clarification, the

District Court responded:



         Finally, respondent seeks "clarification" of the order of July 21,
         1993. This Court cannot speak more plainly than it did in that
         order.



                                  LEGAL ANALYSIS



         The state argues that the trial judge abused her discretion in dismissing

the indictment. The state's argument is premised upon two contentions: (1) the

District Court was without jurisdiction to bar re-prosecution, and (2) the 1993

order was ambiguous and did not prevent re-prosecution.



         Federal courts are vested "the largest power to control and direct the form

of judgment to be entered in cases brought before it on habeas corpus." Hilton

v. Braunskill, 481 U.S. 770, 775 (1987). Permanent discharge may, in the

appropriate case, be warranted. Burton v. Johnson, 975 F.2d 690, 693 (10th Cir.

1992).



         The District Court's conditional order was an appealable final judgment.

The state, however, failed to challenge the remedy's propriety on direct appeal.

Accordingly, the state has waived any issues regarding: (1) the propriety of the

conditional order, and (2) the "jurisdiction" of the District Court to dismiss all

charges if conditions were not met.



         The state's argument that the trial judge abused her discretion is without

merit. The 1993 order stated that all charges would be dismissed if the state did

not reschedule a new trial within 60 days. Absent a grant of a stay, the 1993

judgment became enforceable "10 days after its entry." See Fed. R. Civ. P.,



                                           -4-
Rule 62(a). The order was not stayed and the state neglected to reschedule a

new trial until 1995. The trial judge, therefore, did not abuse her discretion by

following the federal mandate and dismissing the charges.



        We further note that clarification of the District Court's order is not within

our province. However, the state filed a Rule 60 motion specifically requesting

relief from the bar of future re-prosecution. The District Court declined to provide

such relief. Accordingly, we must assume that absent further guidance or

clarification, the District Court has permanently barred re-prosecution of the

appellee's indictment stemming from the 1977 rape charges.2 To hold otherwise

would contravene the apparent intentions of the District Court.



AFFIRMED




                                                 ________________________________
                                                 PAUL G. SUMMERS, Judge


CONCUR:



        2
         Once the appellee's charges were dismissed, there were no longer charges upon which to
base re-indictment.

                                               -5-
______________________________
JOSEPH M. TIPTON, Judge




______________________________
CHARLES LEE, Special Judge




                                 -6-
