             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE                FILED
                           DECEMBER 1998 SESSION
                                                               April 20, 1999

                                                          Cecil W. Crowson
GRANT C. IVEY,                )                          Appellate Court Clerk
                              )
             Appellant,       )    No. 01C01-9801-CC-00052
                              )
                              )    Rutherford County
v.                            )
                              )    Honorable J. S. Daniel, Judge
                              )
STATE OF TENNESSEE,           )     (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

Gerald L. Melton                   John Knox Walkup
District Public Defender           Attorney General of Tennessee
201 West Main Street                      and
Murfreesboro, TN 37130             Elizabeth B. Marney
(AT TRIAL)                         Assistant Attorney General of Tennessee
                                   425 Fifth Avenue North
Grant C. Ivey, Pro se              Nashville, TN 37243-0493
Turney Center Unit 3
Route 1                            William C. Whitesell, Jr.
Only, TN 37140-9709                District Attorney General
                                   Judicial Bldg., Ste 303
                                   20 N. Public Square
                                   Murfreesboro, TN 37130




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Grant C. Ivey, pro se, appeals as of right from the

Rutherford County Circuit Court’s order dismissing his petition for post-conviction relief.

He contends (1) that his convictions upon guilty pleas to two counts of attempt to

commit second degree murder and to especially aggravated robbery violate the Double

Jeopardy Clause of the United States Constitution and (2) that he received the

ineffective assistance of counsel when counsel advised him to plead guilty. The trial

court dismissed the petition for being untimely filed and for the petitioner failing to allege

or show any basis for relief. Although we conclude that the petition was filed timely, we

hold that no violation of the Double Jeopardy Clause has been shown.



              The record reflects that the petitioner was originally prosecuted for and

convicted of especially aggravated robbery and two counts of attempt to commit felony

murder. Pending his sentencing hearing, the Tennessee Supreme Court rendered an

opinion holding that the offense of attempt to commit felony murder did not exist in

Tennessee. See State v. Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996). The trial

court set the petitioner’s case for retrial for two counts of attempt to commit second

degree murder, but pursuant to a plea bargain, the petitioner entered guilty pleas to two

counts of attempt to commit second degree murder. The petitioner received concurrent

ten-year sentences, to be served consecutively to the twenty-five-year sentence he

accepted for the especially aggravated robbery conviction.



              At the post-conviction evidentiary hearing, the petitioner testified that his

trial attorney should have told him about his right not to be tried again and should not

have advised him to plead guilty. He said that he wanted a reduction in his sentence.

At that point, the district attorney general moved to dismiss the petition because it was

untimely filed and because the petitioner had not proven any ground for relief existed.



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The district attorney general stated that the judgments of conviction were entered on

September 3, 1996, and that the petition was filed on September 4, 1997, outside the

one-year time limit. See Tenn. Code Ann. § 40-30-202(a). The trial court granted the

motion on both grounds.



              First, we believe that the record reflects that the petition was filed within

the one-year time limit. Although the trial court clerk’s stamp shows that the petition

was filed in the clerk’s office on September 4, 1997, the petitioner’s certificate of service

asserts that the petition was delivered to the prison post office pursuant to the “Post

Office Box Deposit Rule” on September 2, 1997. Two rules exist regarding the

petitioner’s filing of his petition for post-conviction relief. Pursuant to Rule 28, § 2 (G),

Rules of the Supreme Court of Tennessee, filing of a post-conviction petition by a pro

se incarcerated petitioner is complete “when it is received by the appropriate prison

authorities for mailing.” Pursuant to Rule 49(c), Tenn. R. Crim. P., a post-conviction

petition prepared by or on behalf of a pro se litigant is deemed filed timely “if the papers

are delivered to the appropriate individual at the correctional facility within the time fixed

for filing.” Thus, the record before us does not support the trial court’s conclusion that

the petition was untimely filed.



              As for the petitioner’s substantive claims, they are primarily based upon

his contention that after he was tried and convicted, the Double Jeopardy Clause

prevented his reprosecution. However, the Double Jeopardy Clause does not bar

retrial in certain circumstances. For instance, if a defendant is successful in seeking

reversal of a conviction, double jeopardy does not bar retrial. See United States v.

Tateo, 377 U.S. 463, 465, 84 S. Ct. 1587, 1589 (1964); State v. Longstreet, 619

S.W.2d 97, 100-101 (Tenn. 1981). Also, the Double Jeopardy Clause does not bar

retrial when the original conviction is deemed void because of some fundamental defect

in the jurisdiction of the case. See United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct.



                                               3
2187, 2193 (1978); State v. Campbell, 641 S.W.2d 890, 893 (1982). The petitioner was

charged, prosecuted, and convicted by a jury for an offense that did not exist. Relative

to the charges of attempt to commit felony murder, the case was a nullity. Under these

circumstances, the petitioner could lawfully be prosecuted for attempt to commit second

degree murder. See, e.g., State v. Richard Madkins, No. 02-S-01-9805-CR-00046,

Shelby County (Tenn. Mar. 22, 1999) (for publication).



              In consideration of the foregoing and the record as a whole, we affirm the

judgment of the trial court.



                                                _________________________
                                                Joseph M. Tipton, Judge

CONCUR:



________________________
John H. Peay, Judge



________________________
Norma McGee Ogle, Judge




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