            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          SEPTEMBER 1998 SESSION
                                                        October 28, 1998

                                                    Cecil W. Crowson
GARY L. GREEN,                *                    Appellate Court Clerk
                                   # 01C01-9709-CR-00393

             Appellant,       *    DAVIDSON COUNTY

VS.                           *    Hon. Thomas H. Shriver, Judge

STATE OF TENNESSEE,           *    (Post-Conviction)

             Appellee.        *

                              *




For Appellant:                     For Appellee:

Gary L. Green, Pro Se              John Knox Walkup
# 149575                           Attorney General & Reporter
CCA/SCCC
P.O. Box 279                       Elizabeth B. Marney
Clifton, TN 38425                  Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   Mary Hausman
                                   Assistant District Attorney General
                                   Washington Square
                                   Suite 500
                                   222 Second Avenue, North
                                   Nashville, TN 37201-1649


OPINION FILED: __________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

              On August 15, 1996, the petitioner, Gary L. Green, was convicted of

especially aggravated kidnapping. He received a Range II, thirty-year sentence.

State v. Gary L. Green, No. 01C01-9706-CR-00207, slip op. at 2 (Tenn. Crim. App.,

at Nashville, Apr. 9, 1998), application to appeal filed, (May 27, 1998). On July 18,

1997, he filed this petition for post-conviction relief claiming the indictment was

defective and that his counsel was ineffective. Several days later, the trial court

entered an order dismissing the petition for failure to state a claim for relief.



              On appeal, the petitioner contends the trial court erred by dismissing

his petition without the appointment of counsel, the opportunity to amend, or an

evidentiary hearing. For grounds other than those stated by the trial court, we affirm

the dismissal.



              The petitioner's case was on direct appeal when this petition for post-

conviction relief was filed. On April 9, 1998, this court affirmed the especially

aggravated kidnapping conviction and on May 27, 1998, the petitioner filed a pro se

Rule 11 application for permission to appeal to the supreme court. Id. The Rule 11

application is still pending.



              A petition for post-conviction relief may not be maintained while a

direct appeal of the same conviction is pending. Jones v. State, 453 S.W.2d 433

(Tenn. Crim. App. 1970). The new Post-Conviction Procedure Act provides that a

petition may be filed "within one (1) year of the date of the final action of the highest

state appellate court to which an appeal is taken." Tenn. Code Ann. § 40-30-202(a).

On the date this petition was dismissed, this court had not ruled on the petitioner's

direct appeal. Thus, the petition was filed prematurely.


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              In Jones, our court explained the rationale for not allowing

consideration of a petition for post-conviction relief while the direct appeal is

pending:

              It is generally held that whenever a court has acquired
              jurisdiction of a case, no other court may ... interfere with
              its action in matters concerning which it has acquired
              jurisdiction. For example, if an appellate court has
              acquired jurisdiction by virtue of an appeal from a
              judgment of conviction, no other court may discharge the
              defendant during the pendency of the appeal. That is to
              say, a court has no power to grant [relief] pending an
              appeal to another court from a conviction in a criminal
              prosecution.

453 S.W.2d at 434 (quoting 39 Am.Jur.2d., Habeas Corpus, § 107).



              This court has applied the rationale of Jones to petitions filed after the

passage of the new Act. David McClain v. State, No. 02C01-9608-CR-00308, slip

op. at 2 (Tenn. Crim. App., at Jackson, Nov. 6, 1997). Because the petition was

filed prematurely, the dismissal is without prejudice. The petitioner shall have one

year from the final action of our state supreme court within which to file a petition for

post-conviction relief. See id.



                                           __________________________________
                                           Gary R. Wade, Presiding Judge

CONCUR:



_________________________________
Thomas T. W oodall, Judge



_________________________________
Curwood Witt, Judge




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