         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs February 26, 2002

            JACKIE WILLIAM CROWE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for McMinn County
                            No. 98-034  Carroll L. Ross, Judge



                     No. E2001-01559-CCA-R3-PC Filed April 22, 2002


Jackie W. Crowe appeals from the McMinn County Criminal Court’s denial of his post-conviction
motion to dismiss the indictments against him. Crowe, who is incarcerated in the Department of
Correction on convictions of rape and incest, is proceeding pro se. Because he has already exhausted
his one opportunity for post-conviction relief and because his motion does not comply with the
requirements for a habeas corpus proceeding, we dismiss the appeal.

                             Tenn. R. App. P. 3; Appeal Dismissed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

Jackie William Crowe, Appellant, Pro Se.

Michael E. Moore, Solicitor General; Christine M. Lapps, Assistant Attorney General; and Jerry N.
Estes, District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION


                Jackie W. Crowe was convicted of two counts of rape and two counts of incest in the
McMinn County Criminal Court. See State v. Jackie Crowe, No. 03C01-9606-CR-00331, slip op.
at 2 (Tenn. Crim. App., Knoxville, Oct. 8, 1997) (“Crowe I”), perm. app. denied (Tenn. 1998). He
was sentenced to a 24-year term, which he is presently serving in the Department of Correction. See
id. He thereafter filed a petition for post-conviction relief alleging that he did not receive the
effective assistance of counsel at trial and on direct appeal. Jackie William Crowe v. State, No.
E1998-00016-CCA-R3-PC, slip op. at 1-2 (Tenn. Crim. App., Knoxville, June 20, 2000) (“Crowe
II”), perm. app. denied (Tenn. 2001). That petition was heard on its merits and relief was denied.
See generally id. The petitioner then filed a “Motion to Dismiss,” in which he alleged various
infirmities relative to the indictment underlying his convictions. The McMinn County Criminal
Court dismissed the motion, holding that the issues raised therein were previously determined in the
post-conviction proceeding. Crowe then filed this appeal, and the matter is now before us for
disposition.

                This Rule 3 appeal of the denial of the “Motion to Dismiss” is subject to summary
dismissal. Rule 3 does not authorize a rightful appeal from the denial of a “motion to dismiss” that
was filed after the criminal conviction became final. See Tenn. R. App. P. 3(b): Cox v. State, 53 S.
W.3d 287, 293 (Tenn. Crim. App. 2001) (use of form of action that does not conform to Rule 3(b)
“deprives the claimant of a rightful appeal”). However, resolution of this case requires us to consider
whether the petitioner’s inartful “Motion to Dismiss” may be considered as an action under the Post-
Conviction Procedures Act or as a petitioner for the writ of habeas corpus, causes of action the
dismissal of which are appealable pursuant to Rule 3(b). See Cox, 53 S.W.3d at 294.

               As a post-conviction proceeding, the motion is ineffectual. The petitioner has already
prosecuted a post-conviction proceeding to its conclusion, and he is entitled to do so only once. See
Tenn. Code Ann. § 40-30-202(c) (1997). Moreover, he has neither followed the procedure for nor
stated an adequate basis for reopening his prior post-conviction petition. See id. § 40-30-217 (1997).
Thus, the motion is not cognizable as a post-conviction claim.

                 Although the motion does, on its face, allege facts that might support a claim of
indictment voidness as would be cognizable in a petition for the writ of habeas corpus, the motion
was not filed in the proper venue for a habeas corpus action. Under Code section 29-21-105, a
petition for the writ of habeas corpus must be filed with “the court or judge most convenient in point
of distance to the applicant, unless a sufficient reason be given in the petition for not applying to
such court or judge.” Tenn. Code Ann. § 29-21-105 (2000). Generally, this is in the county where
the petitioner is incarcerated. See, e.g., Lewis v. Metropolitan Gen. Sessions Ct., 949 S.W.2d 696,
700 (Tenn. Crim. App. 1996). The “motion to dismiss” was filed in McMinn County; however, the
record reflects that Crowe is incarcerated in Bledsoe County. Also, the “motion” does not comply
with the drafting requirements for a petition seeking the writ of habeas corpus. See Tenn. Code
Ann. § 29-21-107 (2000). Thus, the motion was not properly treatable as a petition for a writ of
habeas corpus. See Cox, 53 S.W.3d at 292.

               Furthermore, had the sufficiency-of-indictment issues been brought in the proper
venue, the record of this case would require that they be denied. The challenged counts of the
indictment are sufficient.

               Crowe first claims that count one is insufficient because it is not denominated as
“number#1.” However, we are unaware of any authority that would require such denomination in
order for a defendant to be informed of the nature and cause of the accusation against him. See
generally U.S. Const. amends. VI, XIV; Tenn. Const. art. 1, § 9; Wyatt v. State, 24 S.W.3d 319, 324
(Tenn. 2000).

               Crowe also claims that the indictment’s allegations amount to legal conclusions
without a statement of the facts and circumstances of the crime and that the essential elements of the

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offenses are not alleged. Our review of the charging instrument disproves these claims. See
generally Wyatt, 24 S.W.3d at 324.

                 Crowe complains that counts two and four of the indictment are duplicative and
therefore violate double jeopardy proscriptions. Counts two and four are the incest counts.
Although these counts read identically, they allege a one-year time period during which, as was
proven at trial, multiple offenses occurred. See generally Crowe I, slip op. at 2-3.

                Crowe also complains that the indictments do not demonstrate that the offenses were
committed within the jurisdiction of the court. This is a somewhat convoluted allegation which
appears to relate to proof at trial that sexual misconduct occurred both in Meigs County and McMinn
County. The indictment itself alleges that the offenses occurred in McMinn County, which is
obviously within the jurisdiction of the McMinn County Criminal Court. Thus, no insufficiency of
the indictment exists. To the extent that this issue is a complaint about the proof allowed at trial, the
issue is beyond the scope of habeas corpus proceedings.

                For these reasons, Crowe would not be entitled to habeas corpus relief, even if he had
filed a proper pleading in the proper court.

                In closing, we must comment upon Crowe’s attempt to raise additional issues in his
appellate brief that were not the subject of the motion he filed in the lower court. It is a well-settled
principle that this court will not consider issues raised for the first time on appeal. See, e.g., State
v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995). Moreover, to the extent that these
issues could have been raised in prior proceedings but were not, they are waived. See, e.g., Tenn.
Code Ann. § 40-30-206(g) (1997).

             In conclusion, we dismiss the appeal and thereby affirm the lower court’s denial of
Crowe’s “Motion to Dismiss.”

                We will tax costs of the appeal to the petitioner. Tennessee Rule of Appellate
Procedure 40(a) provides that “if an appeal is dismissed” or “if a judgment is affirmed, [appellate]
costs shall be taxed against the appellant,” unless the appellate court otherwise orders. Tenn. R.
App. P. 40(a) (emphasis added). This court has often “otherwise ordered” when the record of the
lower court proceeding demonstrated that the lower court determined that the appellant was
“indigent,” meaning that the person had insufficient “means to pay reasonable compensation for the
services of a competent attorney.” Tenn. Code Ann. § 40-14-201 (1997). In other words, when the
record on appeal showed that the court below found the criminal defendant or petitioner-appellant
to be indigent, as a dispensation we have often excused the appellant from paying appellate court
costs, even if this court affirmed the lower court’s judgment. See Larry C. Corum v. State, No.
E2000-01076-CCA-OT-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, July 5, 2000) (order). In
the present case, the issue of the petitioner’s “indigency” was not raised below and was not
addressed by the lower court in this cause of action. Because the record contains no basis for us
granting the dispensation, we invoke Rule 40(a) as it was intended to apply in taxing appellate costs

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upon dismissal of the appeal or affirmance of the lower court. Again, in those situations, the
appellant is liable for paying appellate court costs.



                                                   ___________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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