         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 22, 2008

             JEFFREY W. HAITHCOTE v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Bedford County
                         Nos. 9934 and 9935     Lee Russell, Judge



                   No. M2007-01469-CCA-R3-PC- Filed November 4, 2008


The Petitioner, Jeffrey W. Haithcote, filed a motion to reopen his post-conviction petition, arguing
that (1) he received ineffective assistance of counsel; (2) the State failed to keep a record of his
preliminary hearing; (3) the State breached the plea bargain to which the Defendant agreed; (4)
newly discovered evidence is available in the form of tapes, witness statements, and transcripts; (5)
his motion to withdraw his guilty plea was not heard; (6) the State improperly used his prior
convictions to impeach him and enhance his sentence; (7) his convictions violated the Double
Jeopardy and Ex Post Facto Clauses of the United States Constitution; and (8) the State failed to
make certain transcripts available to him. The trial court summarily denied the motion. Following
our review, we dismiss the appeal.


                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

DAVID H. WELLES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and D.
KELLY THOMAS, JR., JJ, joined.

Jeffrey W. Haithcote, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Charles Crawford, District Attorney General; and Michael D. Randles, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                        Factual Background
       A jury convicted the Petitioner of evading arrest and reckless endangerment. He
subsequently pleaded guilty to an unrelated charge of escape. As a part of his plea agreement, he
waived the right to appeal the earlier convictions for evading arrest and reckless endangerment.
        The Petitioner filed a petition for post-conviction relief on May 17, 2004. The post-
conviction court denied the Petitioner relief; this Court upheld that denial. See Jeffrey Wayne
Haithcote v. State, No. M2004-02196-CCA-R3-PC, 2005 WL 2139405, at *11 (Tenn. Crim. App.,
Nashville, Sept. 2, 2005), perm. to app. denied (Tenn. Feb. 6, 2006). The Petitioner then, on April
5, 2006, filed in the trial court a motion to reopen his post-conviction petition. That court denied his
motion on October 31, 2006. The Petitioner subsequently filed a notice of appeal in an attempt to
appeal the denial of the motion to reopen.

                                              Analysis
       Tennessee Code Annotated section 40-30-117(a) outlines certain limited circumstances under
which a petitioner may file a motion to reopen post-conviction proceedings. The Petitioner’s
attempt to appeal from the trial court’s denial of his petition is deficient in two respects.

        First, the Petitioner filed a “notice of appeal,” governed by Tennessee Rule of Appellate
Procedure 3(b). That rule does not provide for an appeal as of right in this situation, as the Petitioner
is not appealing from “an order denying or revoking probation” or from a “final judgment in a
criminal contempt, habeas corpus, extradition, or post-conviction proceeding.” Tenn. R. App. P.
3(b). The Petitioner should have filed an application for permission to appeal, as required by
Tennessee Code Annotated section 40-30-117(c). See Fletcher v. State, 951 S.W.2d 378, 382 (Tenn.
1997) (stating that “an appeal from the denial of a motion to reopen is a discretionary appeal, not an
appeal as of right”). While our supreme court has held that a pleading titled as a “notice of appeal”
can be treated as an “application for permission to appeal,” it still “must include the date and
judgment from which the petitioner seeks review, the issue which the petitioner seeks to raise, and
the reasons why the appellate court should grant review.” Graham v. State, 90 S.W.3d 687, 691
(Tenn. 2002). Here, the Petitioner’s notice of appeal only contains the date of judgment, and
therefore, cannot be treated as an application for permission to appeal.

         Second, the Petitioner did not timely file an application for permission to appeal. If the trial
court denies a motion to reopen, “the petitioner shall have ten (10) days to file an application in the
court of criminal appeals seeking permission to appeal.” Tenn. Code Ann. § 40-30-117(c). Here,
the trial court denied the petitioner’s motion on October 31, 2006. Thus, the Petitioner had until
November 10, 2006, to file an application for permission to appeal. See id. The trial court clerk,
upon receipt of a petitioner’s notice of appeal, is required to serve a copy of the notice on the
relevant appeals court clerk. Tenn. R. App. P. 5(a). That did not occur here until July 2, 2007. The
notice of appeal does not reflect a “stamp-filed” date, showing the date it was filed in the trial court.
The notice of appeal is dated November 15, 2006, five days after the statutory deadline. Thus, even
if the notice of appeal is treated as an application for permission to appeal, it would not be timely
filed.

       Because of these deficiencies, this appeal is not properly before us and should accordingly
be dismissed.




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                                           Conclusion
        For the reasons stated above, we dismiss this appeal of the trial court’s denial of the
Petitioner’s motion to reopen his post-conviction petition.



                                                          ______________________________
                                                          DAVID H. WELLES, JUDGE




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