            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                        OCTOBER 1998 SESSION
                                                       FILED
                                                        October 19, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk
WILLIAM EARL MURPHY,       )
                           )     C.C.A. No. 02C01-9712-CC-00473
      Appellant,           )
                           )     Madison County
v.                         )
                           )     Honorable Franklin Murchison, Judge
STATE OF TENNESSEE,        )
                           )     (Post-Conviction)
      Appellee.            )




FOR THE APPELLANT:               FOR THE APPELLEE:

Marcus M. Reaves                 John Knox Walkup
313 East Lafayette               Attorney General & Reporter
Jackson, TN 38301                425 Fifth Avenue, North
                                 Nashville, TN 37243-0493

                                 Clinton J. Morgan
                                 Assistant Attorney General
                                 425 Fifth Avenue, North
                                 Nashville, TN 37234-0493

                                 James G. Woodall
                                 District Attorney General
                                 225 Martin Luther King Drive
                                 Jackson, TN 38302

                                 Alfred L. Earls
                                 Assistant District Attorney General
                                 225 Martin Luther King Drive
                                 Jackson, TN 38302




OPINION FILED: ______________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE


                               OPINION
       The appellant, William Earl Murphy, referred herein as the petitioner, appeals as of

right from an order of the Madison County Circuit Court dismissing his pro se petition for

post-conviction relief without an evidentiary hearing. The trial court dismissed the petition

for failure to state a claim for which relief could be granted in that the petition did not allege

facts showing the petitioner had been subjected to double jeopardy. After an appropriate

review of the entire record, briefs of all parties, and the appropriate law, the trial court’s

judgment is affirmed.



       On February 3, 1994, the Jackson City Court issued an arrest warrant for the

petitioner for the offense of aggravated robbery committed on February 1, 1994 in Madison

County. The petitioner was arrested pursuant to a revocation warrant for violation of parole

of a twelve-year sentence imposed in 1989. In June, 1994, the Madison County Sheriff’s

Department recalled a detainer from the Department of Correction placed against the

petitioner. In August, 1994, the petitioner was indicted by the Madison County grand jury

for the offense of aggravated robbery and in June, 1995 for failure to appear. The

Department of Correction released the petitioner in September, 1994. On January 2, 1996,

the petitioner pled guilty to the included offense of robbery, arising out of the aggravated

robbery charge, and to failure to appear.



       The petitioner contends he was twice placed in double jeopardy. He argues the first

occurrence took place when the City Court of Jackson issued an arrest warrant for

aggravated robbery which in turn triggered the Department of Correction to obtain a

warrant for parole violations on the same offense. Thus, the incarceration of the petitioner

was punishment. Second, the petitioner contends he was placed in jeopardy when the

Madison County grand jury indicted him for aggravated robbery. The State moved to

dismiss the petition on the basis the claim of double jeopardy was not a valid ground for

relief. The trial court dismissed the petition on the grounds the petitioner was not placed

in double jeopardy neither by the City Court on the felony warrant as the City Court has no

jurisdiction to try a felony nor by the administrative actions of the Board of Paroles.

                                                2
         We agree with the trial court’s judgment that the petition does not present a claim

for which relief can be granted. The petitioner was represented by counsel at the time of

the entry of his guilty pleas to the offenses of robbery and failure to appear. Therefore, if

there was a legal question as to the petitioner’s double jeopardy status, the opportunity

was ripe. The Double Jeopardy Clause of the Fifth Amendment of the United States

Constitution, applicable to the states through the Fourteenth Amendment, provides that no

person shall “be subject for the same offense to be twice put in jeopardy of life or limb. .

. .” The Tennessee Constitution has the same provision. Three fundamental principles

underlie double jeopardy: (1) protection against a second prosecution after an acquittal;

(2) protection against a second prosecution after conviction; and (3) protection against

multiple punishments for the same offense. State v. Lewis, 958 S.W.2d 736, 738 (Tenn.

1997).



         We hold the petitioner waived any complaints of double jeopardy by not presenting

this issue to the trial court. Tenn. Code Ann. § 40-30-206(g) provides:

                A ground for relief is waived if the petitioner personally or
                through an attorney failed to present it for determination in any
                proceeding before a court of competent jurisdiction in which
                the ground could have been presented (exceptions omitted).


         The trial court’s judgment is affirmed.



                                            ________________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE
CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
DAVID G. HAYES, JUDGE




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