         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE         FILED
                        NOVEMBER 1998 SESSION
                                                    December 8, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
WILLIE ROBERT SEAY,                  )
                                     )   NO. 01C01-9712-CR-00570
      Appellant,                     )
                                     )   WILSON COUNTY
VS.                                  )
                                     )   HON. J. O. BOND,
STATE OF TENNESSEE,                  )   JUDGE
                                     )
      Appellee.                      )   (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

WILLIE ROBERT SEAY, Pro Se               JOHN KNOX WALKUP
#141848                                  Attorney General and Reporter
Unit 6-A-102
Riverbend Maximum Security Prison        CLINTON J. MORGAN
7475 Cockrill Bend Industrial Road       Assistant Attorney General
Nashville, TN 37209-1010                 Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         TOM P. THOMPSON, JR.
                                         District Attorney General

                                         DAVID DURHAM
                                         Assistant District Attorney General
                                         111 Cherry Street
                                         Lebanon, TN 37087-3609




OPINION FILED:



APPEAL DISMISSED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Willie Robert Seay, appeals the trial court’s summary

dismissal of his petition for post-conviction relief. The petitioner claims the trial

court erred in dismissing his petition for post-conviction relief and presents the

following issues for review:


               (1) whether the evidence presented at trial was
               sufficient to support his convictions;

               (2) whether trial counsel was deficient in stipulating
               that the substance sold by the petitioner was cocaine;

               (3) whether trial counsel was ineffective in stipulating
               as to the amount of cocaine sold; and

               (4) whether trial counsel was ineffective in stipulating
               “that the drugs alleged to have been sold by the
               defendant existed.”


As explained in detail below, the petitioner has waived consideration of these

issues because he failed to timely file notice of appeal. However, were the

issues not considered waived, we note the issues presented were previously

determined on direct appeal.



                               PROCEDURAL HISTORY



          The petitioner was convicted by a jury in 1994 on two (2) counts of the

sale of cocaine over ½ gram, Class B felonies. Those convictions were affirmed

by this Court on direct appeal. State v. Willie Robert Seay, C.C.A. No. 01C01-

9506-CC-00162, Wilson County (Tenn. Crim. App. filed February 23, 1996, at

Nashville). The Tennessee Supreme Court subsequently denied permission to

appeal.



       The petitioner timely filed a pro se petition for post-conviction relief on

April 4, 1997. The trial court dismissed the petition May 8, 1997, for failure to

present a colorable claim, finding the issues having been previously determined

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on direct appeal. The petitioner filed a notice of appeal on October 1, 1997.



                                     DISPOSITION



       Firstly, the notice of appeal from the dismissal of the post-conviction

petition was not timely filed. A notice of appeal is required to be filed within thirty

(30) days of the date of the entry of judgment or order from which relief is

sought. Tenn. R. App. P. 4(a). The petitioner filed his notice over four (4)

months after entry of the trial court’s order. 1 The appeal is time-barred and

should be dismissed.



       Secondly, the grounds for relief in this appeal were “previously

determined” by a court of competent jurisdiction. See Tenn. Code Ann. § 40-30-

206(h). As sufficiency of the evidence and ineffective assistance of counsel

were expressly raised and decided on direct appeal, they have been “previously

determined.” See House v. State, 911 S.W.2d 705, 711 (Tenn. 1995).



       Accordingly, the appeal is DISMISSED.




       1
          Tenn. R. App. P. 4(a) does authorize our waiver of the requirement of
timely filing “in the interest of justice.” However, as the petitioner’s issues were
previously determined on direct appeal, the interest of justice does not require
waiver of timely filing. Furthermore, no reason for the untimely filing has been
advanced by petitioner. See State v. Ted Ray Brannan, C.C.A. No. 01C01-9704-
CC-00148, Franklin County (Tenn. Crim. App. filed May 15, 1998, at Nashville).

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                                    _________________________
                                    JOE G. RILEY, JUDGE


CONCUR:




_____________________________
PAUL G. SUMMERS, JUDGE




_____________________________
L.T. LAFFERTY, SENIOR JUDGE




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