         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 5, 2000

                       MIRACK R. SMITH v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                        No. P-16716    Carolyn Wade Blackett, Judge



                    No. W1999-01566-CCA-R3-PC - Filed February 9, 2001



JOE G. RILEY, J., concurring.

        I write separately to express my concern about the undue delay in the disposition of this
petition for post-conviction relief in the trial court. Petitioner pled guilty on November 6, 1995, and
timely filed his petition for post-conviction relief on April 15, 1996. The state responded on April
25, 1996. The record does not contain a preliminary order as required by Tenn. Code Ann. § 40-30-
207(a), although the trial court appointed counsel for the petitioner on May 21, 1996. An amended
petition was not filed by counsel until August 13, 1996. See Tenn. Code Ann. § 40-30-207(b)(2).
An evidentiary hearing was not conducted until April 10, 1997, in violation of Tenn. Code Ann. §
40-30-209(a). At the conclusion of the evidentiary hearing on that date, the matter was “taken under
advisement until May 21, 1997.” There is no order or transcript reflecting any action on May 21,
1997. Nothing further appears in the record until November 22, 1999, at which time the trial court’s
written findings and conclusions were filed. Thus, the case was not concluded until over three years
and seven months from the filing of the petition and over two years and seven months after the
evidentiary hearing.

        The Post-Conviction Procedure Act of 1995 sets forth various time requirements that must
be met by the defendant, the state and the trial court. The Tennessee Supreme Court has likewise
imposed various time requirements that must be met in post-conviction cases. See Tenn. Sup. Ct.
R. 28 (effective October 28, 1996). It is apparent that these time requirements were imposed to
insure the prompt hearing and disposition of petitions. The ultimate responsibility is upon the trial
and appellate courts to “dispose of all judicial matters promptly, efficiently and fairly.” Tenn. Sup.
Ct. R. 10, Canon 3B(8). Tenn. Code Ann. § 40-30-211(d) and Tenn. Sup. Ct. R. 28 § 9(A) require
that the trial court rule within sixty (60) days from the conclusion of the proof; the deadline may be
extended only by court order based upon manifest necessity; and such extension may not exceed
thirty (30) days.1

        In spite of the delay, I agree with the excellent opinion by Judge Williams. Petitioner is not
entitled to relief on the merits of his petition.




                                                                 ___________________________________
                                                                 JOE G. RILEY, JUDGE




         1
           Petitioner’s counsel did indicate at the April 10, 1997, hearing that he was seeking further expert services at
state expense. The record reveals an agreement to hear the request on May 21, 1997; however, nothing further appears
in the record regarding the request.

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