             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   Assigned on Briefs May 14, 2003

               CLINTON WAYNE LYNCH v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Davidson County
                              No. 85-F-1690     Walter Kurtz, Judge



                         No. M2002-02801-CCA-R3-PC - Filed June 10, 2003


The petitioner, Clinton Wayne Lynch, appeals from the order of the trial court denying his petition
requesting forensic DNA analysis of evidence related to the investigation and prosecution which
resulted in the petitioner’s conviction for second degree murder entered upon his plea of guilty in
1986. We affirm the judgment of the trial court.

    Tenn. R. App. P. Rule 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

Clinton Wayne Lynch, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Lisa Naylor, Assistant District Attrorney General,
for the appellee, State of Tennessee.


                                                     OPINION


        The petitioner was initially charged with first degree murder and aggravated rape. In July,
1986, he pleaded guilty to and was convicted of second degree murder. In exchange for his guilty
plea, he received a sentence of forty years as a Range II, especially aggravated offender.1


         1
           The record on appeal is sparse. Because the petitioner was convicted upon a guilty plea, there was no direct
app eal. Part of the procedural background concerning this matter has been gleaned from appellate op inions in other
proceedings in which the petitioner has sought relief from his conviction and sentenc e. See Clinton Lynch v. State, No.
89-201-III, 199 0 W L 33 67 (Tenn. Crim. Ap p., Nashville, Jan. 19, 199 0); Clinton W. Lynch v. Ricky Bell, Warden, No.
01C01-9705-CR-00187, 19 98 W L 199 990 (Te nn. Crim. Ap p., Nashville, A pr. 23 , 199 8); see also Clinton Wayne Lynch
v. State, No. M 2002-01 738-CC A-R28-CO , Order of Court (Tenn. Crim. App., Nashville, Sept. 6, 2002).
        On June 21, 2002, the petitioner filed a motion to reopen his post-conviction petition. The
trial court summarily denied the motion, and the petitioner appealed. This Court agreed that the
petition did not satisfy the criteria for reopening a petition for post-conviction relief. This Court
determined, however, that the petition should be treated as a petition seeking DNA analysis under
the “Post-Conviction DNA Analysis Act of 2001.” See Tenn. Code Ann. § 40-30-401 et seq. This
Court remanded this proceeding to the trial court for the purpose of considering the petition as one
seeking DNA analysis.

        Upon remand, the trial court directed the District Attorney General to respond to the petition.
The trial court subsequently entered an order finding that the petitioner was not entitled to relief
because all possible materials that could have been tested had been destroyed pursuant to court order.
The trial court thus denied relief and dismissed the petition. It is from the order of the trial court
dismissing the petition requesting DNA analysis that the petitioner appeals.

        Under the provisions of the Post-Conviction DNA Analysis Act, a trial court is obligated to
order analysis when a petitioner satisfies certain conditions. See Tenn. Code Ann. § 40-30-404. One
of the conditions that the petitioner must establish is that the evidence is still in existence and in such
a condition that DNA analysis may be conducted. See id. § 40-30-404(2). In response to the petition
filed herein, the State filed an affidavit of Sergeant Phillip Sage of the property and evidence section
of the Metropolitan Police Department. According to the affidavit, all evidence relating to the
petitioner’s prosecution was destroyed pursuant to court order. The State filed a copy of an order
of the Criminal Court of Davidson County filed November 2, 1988, granting the State’s motion to
destroy the evidence because it was no longer needed.

        As this court recently observed, “The failure to meet any of the qualifying criteria is, of
course, fatal to the action.” William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL
1937110, at *6 (Tenn. Crim. App., Nashville, Apr. 24, 2003). The trial court is under no obligation
to order DNA analysis of evidence unless it finds that the evidence is still in existence and in such
a condition that DNA analysis may be conducted. See Tenn. Code Ann. § 40-30-404(2). The record
supports the trial court’s finding that all possible materials that could be tested have been destroyed.
The DNA Analysis Act did not become effective until August 1, 2001, some 15 years after the
petitioner pled guilty to second degree murder. The pre-trial obligation of the prosecution to
preserve evidence necessary to assure a fair trial is not applicable. See William D. Buford, 2003 WL
1937110, at *6. We conclude that the trial judge did not err by denying relief and dismissing the
petition.

        The judgment of the trial court is affirmed.


                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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