        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                        JULY SESSION, 1997         September 10, 1997

                                                Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
WILLIAM LEW IS HOWELL     )    C.C.A. NO. 03C01-9703-CR-00095
                          )
      Appellant,          )
                          )
                          )    KNOX COUNTY
VS.                       )
                          )    HON. RAY L. JENKINS
STATE OF TENNESSEE,       )    JUDGE
                          )
      Appellee.           )    (Post-Conviction)


               ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF KNOX COUNTY


FOR THE APPELLANT:             FOR THE APPELLEE:

LESLIE M. JEFFRESS             JOHN KNOX W ALKUP
1776 Riverview Tower           Attorney General and Reporter
900 S. Gay Street
Knoxville, TN 37902            MARVIN E. CLEMENTS, JR.
                               Assistant Attorney General
                               Cordell Hull Building, 2nd Floor
                               425 Fifth Avenue North
                               Nashville, TN 37243-0493

                               RANDALL E. NICHOLS
                               District Attorney General

                               CHARME JOHNSON
                               Assistant District Attorney General
                               City-County Building
                               Knoxville, TN 37902



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                           OPINION

          The Defendant appeals as of right from the trial court’s dism issal of his

petition for post-conviction relief without conducting an evidentiary hearing and

without considering the merits of the petition. We reverse the judgment of the

trial court and remand this case for further proceedings.



          The Defendant was originally convicted on a jury verdict of aggravated

sexual battery and was sentenced to serve thirty years as an especially

aggravated offender. This court affirmed his conviction on direct appeal in 1987.1

The Defendant apparently filed a timely petition for post-conviction relief alleging

that he received ineffective assistance of trial counsel. 2 The trial court has never

conducted an evidentiary hearing on the merits of the petition for post-conviction

relief.



          This is the second time that the trial court has dismissed the petition for

post-conviction relief. The trial judge first dismissed the petition for “failure to

prosecute” in an order dated November 16, 1995. After the Defendant appealed

that dismissal, the State acknowledged that the dismissal was not supported by

the record and asked that the case be remanded to the trial court for further

consideration. This Court granted the State’s m otion, pointing out that the trial

court had not set forth in its order or a written memorandum all grounds



1
 See Sta te v. W illiam Ho we ll, alias W illiam Lewis Ho we ll, C.C .A. No. 1113, K nox County (T enn .
Crim . App., Knoxville, June 30 , 1987).

2
 The original petition for post-conviction relief is not found in the record on appeal. Both the
amended petition, which is in the record, and the trial judge’s order of dismissal, recite that the
original petition was filed November 30, 1988.

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presented in the petition with findings of fact and conclusions of law regarding

each ground as required by law. Tenn. Code Ann. § 40-30-118(b) (repealed

1995). If the trial court again determined that the petition should be dismissed

without an evidentiary hearing, the court was directed to “enter an appropriate

order setting forth its findings and its conclusions of law as to each of the claims

raised in the petition.” This order was entered by this Court on April 15, 1996.



      On October 9, 1996, the trial court, apparently acting sua sponte, entered

a new order dismissing the petition. This was done without a hearing and

apparently without any notice to the Defendant or his appointed counsel. A few

days after the entry of the trial court’s order dismissing the petition a second time,

Defendant’s appointed counsel filed a motion requesting the trial court to

reconsider its dismissal. After hearing argument on the motion the trial court

denied the request, stating “W ell, at this juncture I’ve decided that it ought to be

dismissed, and if the Court of Criminal Appeals in its infinite wisdom decides that

it needs to be sent back, then I’ll hear it; otherwise no.”



      It is readily apparent that the trial court did not adhere to or comply with the

order of this Court remanding this case on April 15, 1996. For this reason, we

must again reverse the order of the trial court dismissing the petition and again

remand this case for further consideration.



      In the order dismissing this case after this Court had remanded it to the trial

court, the trial judge stated as reasons for dismissing the petition the following:




                                         -3-
             From the initial filing of this petition, the defendant/petitioner
      has had 26 hearing dates assigned and three attorneys appointed
      to represent him at his request. On the last hearing date, November
      16, 1995, the defendant/petitioner again requested a new attorney
      and the Court dismissed the petition. As a result the Court finds that
      the defendant has been furnished adequate time and sufficient legal
      assistance to prosecute this petition, that he has refused and failed
      to present any proof sustaining his allegations that would support
      post-conviction relief, that he has failed to carry his burden of proof
      either by preponderance of the evidence or clear and convincing
      proof and has indeed abandoned his claim.

            As a result the defendant/petitioner’s Petition is without merit
      in each and every instance and the same is again DISMISSED.


      As we have noted, this post-conviction petition was filed on November 30,

1988, and the trial court has never conducted an evidentiary hearing on or

addressed the merits of the allegations or grounds for relief raised in the petition.

During the entire time this petition has been pending in the trial court, the

Defendant has remained incarcerated in the Tennessee Department of

Correction. The record on appeal does not reflect why a hearing was not

conducted on any of the “twenty-six hearing dates” referred to by the trial judge.

Obviously, the Defendant cannot present any proof in support of his allegations

unless and until an evidentiary hearing is conducted, with the Defendant present

and afforded the opportunity to present testimony or other evidence. There is

nothing in this record to support the trial court’s finding that the Defendant has

abandoned his claim. While the Defendant’s petition for post-conviction relief

may well be totally without merit, there is simply nothing in this record that

supports this finding by the trial judge.



      For the reasons stated in this opinion, we conclude that this case must be

again remanded to the trial court for further consideration. W e also conclude that

the interests of fairness, justice and judicial economy would be better served if

                                            -4-
a judge other than the trial judge who has twice dismissed this petition conducts

such further proceedings.



      The judgment of the trial court is reversed and this case is remanded for

further proceedings.   Upon remand, the Honorable Ray L. Jenkins shall be

recused from further consideration of this matter.




                                ___________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
JOHN K. BYERS, SENIOR JUDGE




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