                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON



VINCENT HARRIS,                            )
                                           )
         Petitioner,                       ) C. C. A. NO. 02C01-9702-CR-00063
                                           )
vs.                                        ) SHELBY COUNTY

STATE OF TENNESSEE,
                                           )
                                           ) No. P-16785
                                                                      FILED
                                           )
         Respondent.                       )                       January 15, 1998

                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk

                                         ORDER



                The petitioner in this case was originally convicted of aggravated rape and

sentenced to twenty years imprisonment. This Court affirmed the conviction and

sentence on direct appeal. State v. Vincent Harris, No. 02C01-9110-CR-00219 (Tenn.

Crim. App., June 17, 1992). On April 24, 1996, the petitioner filed a petition for post-

conviction relief in the trial court challenging his conviction and sentence. The trial court

dismissed the petition without a hearing on May 1, 1996. The court concluded that the

statute of limitations had expired. The petitioner did not file notice of appeal therefrom,

but instead, on December 20, 1996, filed a “motion from relief of judgment or order”

pursuant to Rule 60.02, Rules of Civil Procedure. The petitioner alleged that the trial

court erroneously dismissed his petition as being time-barred. The trial court dismissed

the motion, stating that Rule 60.02 is not applicable to the petitioner’s case. The

petitioner timely filed a notice of appeal from that order, and the case in now before this

Court.



                Rule 28, §3(B), Rules of the Supreme Court, provides that neither the

Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal Procedure

apply to post-conviction proceedings except as specifically provided by these rules.

Nothing in Rule 28 authorizes the application of Rule 60.02, Rules of Civil Procedure.

Accordingly, the petitioner’s “motion from relief of judgment or order” was properly
dismissed by the trial court.1



                   It is therefore ORDERED that the judgment of the trial court is affirmed in

accordance with Rule 20, Rules of the Court of Criminal Appeals. 2 Costs shall be

assessed against the petitioner.



                                                          ___________________________
                                                          JERRY L. SMITH, JUDGE

CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE


______________________________
J. CURWOOD WITT, JUDGE




         1
             Although the trial court properly dismissed the petitioner’s “motion from relief of judgment or
orde r,” its d ism issa l of the petitio n for post -con viction relief w as im prop er. T he pe titione r tim ely filed his
petition for po st-conv iction relief. See Carter v. S tate, 952 S.W .2d 417 ( Tenn . 1997); Mane y v. State,
03C01-9612-CR-00470 (Tenn. Crim. App., Oct. 10, 1997). However, because the petitioner did not file a
notice of a ppeal fro m the order of d ismiss al, this Cou rt is without juris diction to co nsider the matte r.
Mor eove r, we h ave d ecid ed th at the intere st of ju stice does not re quire waive r of th e not ice of appe al in
this case. T.R.A.P. 4(a).

         2
           The petitio ner a lleges on ap pea l for th e firs t time that th e indic tme nt en tered again st him is
invalid beca use it failed to s tate an ap propriate men s rea. T his issue is without m erit. See State v. Hill,
01S01-9701-C C-00005 (Te nn., Nov. 3, 1997).

                                                              2
