             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE               FILED
                                                                    February 9, 1999

                                                                Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk


DENVER JOE McMATH, SR.,          )
                                 )
             Appellant,          )      No. 03C01-9712-CR-00525
                                 )
                                 )      Hamilton County
v.                               )
                                 )      Honorable Douglas A Meyer, Judge
                                 )
STATE OF TENNESSEE,              )      (Post-Conviction)
                                 )
             Appellee.           )



For the Appellant:                      For the Appellee:

Barton C. Solomon                       John Knox Walkup
100 E. Tenth Street, Suite 401          Attorney General of Tennessee
Chattanooga, TN 37402                          and
                                        Todd R. Kelley
                                        Assistant Attorney General of Tennessee
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        William H. Cox, III
                                        District Attorney General
                                        600 Market Street
                                        Chattanooga, TN 37402




OPINION FILED:_______________________


AFFIRMED

Joseph M. Tipton
Judge
                                            OPINION



              The petitioner appeals from the order of the Hamilton County Criminal

Court dismissing his “Petition for Post-Conviction Relief or in the Alternative Motion to

Reopen Post-Conviction Petition.” He contends that his 1975 conviction for third

degree burglary and resulting life sentence as an habitual criminal are void because the

indictment fails to allege the requisite mens rea that he acted either “intentionally,

knowingly or recklessly.” We affirm the dismissal.



              The trial court denied the petitioner relief on the basis that the indictment

was sufficient under the law that existed at the time of the defendant’s conviction. We

agree. The petitioner argues in his petition that the allegations that he “did unlawfully,

feloniously and burglariously break and enter into a business house” contain no

allegation of the requisite mental state element for burglary. However, the word

“feloniously” has historically meant “proceeding from an evil heart or purpose, done with

a deliberate intention of committing a crime.” Black’s Law Dictionary, 617 (6th ed.

1990). As our supreme court has previously noted, “one meaning attached to the word

is: ‘In a legal sense, done with intent to commit a crime.’” State v. Smith, 119 Tenn.

521, 105 S.W. 68, 70 (1907). Thus, the mental state inherent in the word “feloniously”

is sufficient for the petitioner’s burglary charge.



              However, a recurrent circumstance has arisen after the enactment of the

1995 Post-Conviction Procedure Act and exists in the present case. It relates to

incorrect treatment of the petitioner’s pleading as a petition for post-conviction relief that

entitles him to certain procedural protections under the 1995 Act and to an appeal as of

right.




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              The petitioner’s 1975 third degree burglary conviction was affirmed on

appeal. McMath v. State, 544 S.W.2d 902 (Tenn. Crim. App. 1976). The petitioner has

previously sought post-conviction relief from this conviction. See Denver Joe McMath v.

State, No. 578, Hamilton County (Tenn. Crim. App. Nov. 28, 1977), cert. denied (Tenn.

Feb. 6, 1978); State v. Denver Joe McMath, No. 882, Hamilton County (Tenn. Crim.

App. Oct. 24, 1984).



              Under the 1995 Act, a second petition for post-conviction relief shall be

summarily dismissed if the prior petition was resolved on the merits by a court of

competent jurisdiction. T.C.A. § 40-30-202(c). As previously noted, such is the case

with the petitioner and his burglary conviction. Thus, the only avenue that was available

to the petitioner was a motion to reopen a prior post-conviction petition pursuant to

T.C.A. § 40-30-217. In this respect, the petitioner’s designation of his pleading as a

“Petition for Post-Conviction Relief or in the Alternative Motion to Reopen Post-

Conviction Petition” is inappropriate under the 1995 Act because the existence of a

prior post-conviction case resolved on the merits limits a petitioner subsequently to only

a motion to reopen. This means that the petitioner was limited to the grounds provided

in T.C.A. § 40-30-217(a) and could only seek permission to appeal to this court within

ten days of the denial of the motion. See T.C.A. § 40-30-217(c).



              However, the trial court treated the petitioner’s pleading as a post-

conviction petition, and its order denying relief stated that the petitioner had thirty days

to perfect an appeal. Providing an incorrect time period may be fatal because we have

no authority to ignore the statutory limit of ten days for filing an application seeking

permission to appeal a denial of a motion to reopen.



              When faced with an alternative pleading that purports to be either a

petition or a motion to reopen, the trial court must first establish if there has been a



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previous petition for post-conviction relief filed regarding that conviction and resolution

on the merits. If there has been, the trial court may only review the pleading under the

standards and requirements provided for motions to reopen. It may not treat it as a full

petition for post-conviction relief. In the present case, the pleading does not meet the

standards contained in T.C.A. § 40-30-217(a) for a motion to reopen, and the petitioner

is not entitled to have his prior post-conviction petition reopened.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.


                                                  __________________________
                                                  Joseph M. Tipton, Judge


CONCUR:



_________________________
Gary R. Wade, Presiding Judge



_________________________
Norma McGee Ogle, Judge




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