            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             May 2000 Session

                    ROGER HARRIS v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Unicoi County
                          No. 4280     Lynn W. Brown, Trial Judge



                     No. E1999-02056-CCA-R3-PC - Decided July 28, 2000


The petitioner, convicted of first degree murder and reckless endangerment, filed a pro se petition
for post-conviction relief in March 1995. The petition was amended several times, first by the
petitioner, then by the public defender, and ultimately by private counsel. The trial court summarily
dismissed the petition by order because it was not “verified by any oath or affirmation.” We reverse
and remand, holding that the original petition was filed under a statute that did not require
verification by oath or affirmation and, in the alternative, that the affirmation executed by the private
counsel is sufficient under the current law.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ALAN E. GLENN, JJ., joined.

Kenneth J. Irvine, Jr., Knoxville, Tennessee, for the appellant, Roger Harris.

Michael E. Moore, Solicitor General, R. Stephen Jobe, Assistant Attorney General, Joe C. Crumley,
Jr., District Attorney General, and Kenneth Carson Baldwin, Assistant District Attorney, for the
appellee, State of Tennessee.

                                              OPINION

                                             Introduction

        In June 1991, the petitioner, Roger Harris, was convicted by a Unicoi County jury of first
degree murder and reckless endangerment. The petitioner was sentenced to life imprisonment for
the murder and to two years incarceration for the reckless endangerment, and a panel of this Court
affirmed those convictions and sentences. See Roger Dale Harris, No. 03C01-9201-CR-00019
(Tenn. Crim. App. filed July 23, 1992, in Knoxville). The petitioner’s subsequent petition for post-
conviction relief was dismissed when the trial court concluded that it was not “verified by any oath
or affirmation” as required by statute, see Tenn. Code Ann. § 40-30-204(e), and from that dismissal
the petitioner appeals. The state agrees that the verification is not necessary in the instant case and
further agrees that remand to the trial court for further proceedings is appropriate. We remand.

                                                     Background

        In March 1995, the petitioner timely filed a pro se petition for post-conviction relief and
amended that petition in May 1995. The trial court subsequently appointed an attorney from the
public defender’s office as counsel, and counsel amended the petition. In September 1997, the
petitioner’s family secured private representation for the petitioner,1 and that counsel again amended
the petition. The petition and amendments assert that the petitioner received ineffective assistance
of counsel at trial and appellate level, that the original indictment was invalid, and that jury
instructions were erroneous. The trial court entered an order denying the petition because it was not
“verified by oath or affirmation.”

        The state agrees with the petitioner’s first assertion, that the trial court erroneously dismissed
the amended petition because it was not verified as required by the current statute. The state further
agrees that remand to the trial court is appropriate. In the alternative, the petitioner asserts that this
appeal presents three questions of first impression: Does the cited statute apply only to pro se
petitions or also to petitions drafted and signed by counsel; would oath or affirmation satisfy the
statutory requirements and; assuming such oath or affirmation is always required, what remedy does
its absence invoke?

                                                       Analysis

         Under Tennessee Code Annotated, effective in May 1995, “[t]he petition [for post-conviction
relief] and any amended petition shall be verified under oath.” Tenn. Code Ann. § 40-30-204(e).
However, the defendant’s original pro se petition was filed in March 1995, before that statute
became effective, and the law at that time did not require a verification by oath. Panels of this Court,
in decisions cited by the parties, hold that law prior to May 1995 establishes not only the
requirements for petitions filed before that date but also for amendments, filed after that date, for
those petitions. See Wright v. State, 987 S.W.2d 26, 28-29 (Tenn. 1999); Joe Nathan Person v.
State of Tennessee, No. 02C01-9806-CC-00175, Tenn. Crim. App. filed Mar. 15, 1999, at Jackson);
Gaile K. Owens v. State, No. 02C01-9806-CR-00182 (Tenn. Crim. App. filed Sept. 1, 1999, at
Jackson); Sylvester Smith v. State, No. 02C01-9801-CR-00018 (Tenn. Crim. App. filed Dec. 28,
1998, at Jackson); Otha Bomar v. State, 01C01-9607-CR-00325 (Tenn. Crim. App. filed Oct. 30,
1997, at Nashville); Terry D. Barber v. State, No. 02C01-9508-CC-00210 (Tenn. Crim. App. filed
June 28, 1996, at Jackson).



         1
           The trial court originally refused to appoint the private counsel until the petitioner’s family, who had secured
that counsel, paid $500 to the public defender’s office for approximately twenty-five hours of services rendered. A panel
of this Court re versed and remande d. See Roger H arris v. State, No. 03C01-9712 -CR-00516 (Tenn. Crim. App. filed
Jan. 28, 1999, at Knoxville).

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         These cases do not specifically address this “relating back” in the context of the oath
requirement. We conclude, however, that the cited precedent establishes the general principle that
amendments relate back to an original petition, filed before May 1995, and therefore that the oath
requirement for these amendments, under the prior statute, are unnecessary. See also Tenn. Code
Ann. § 40-30-201, Compilers’ Notes, (The current act “shall govern all petitions for post-conviction
relief filed after May 10, 1995, and any motions filed after that date to reopen petitions for post-
conviction relief which were concluded prior to May 10, 1995.”).

         Although our holding disposes of the petitioner’s alternative arguments, we briefly address
those issues. See Jacobs v. State, 450 S.W.2d 581 (Tenn. 1970). First, under the plain language of
the statute, we believe that the requirements apply to all petitions, not only those filed pro se. See,
e.g., John William Evans v. State, No. 03C01-9601-CR-00018 (Tenn. Crim. App., filed Aug. 13,
1997, at Knoxville) (The trial court properly dismissed, without a hearing, a pro se petition that was
amended by appointed counsel when the petitioner declined an opportunity to verify the amendment
under oath.). Regarding the nature of the required affirmation, the current counsel did sign and
certify that he had investigated all of the facts to determine that they were true and correct to the best
of his knowledge and belief. We conclude that such affirmation satisfies the verification
requirement. Finally, the petitioner queries what is the proper remedy should an oath or affirmation
be absent or insufficient. Outright and summary dismissal is likely not the better course of action.
We note that if a pro se petitioner has failed to state a factual basis for the alleged grounds for relief,
the trial court may allow an amendment. See Tenn. Code Ann. § 40-30-206(d). Opportunity for the
petitioner, pro se or represented, to affirm under oath would be appropriate. See Evans, No. 03C01-
9601-CR-00018 (The trial court extended opportunity for petitioner to verify amendments under
oath.).

                                            CONCLUSION

        We reverse and remand this action to the trial court for further appropriate action.




                                                         __________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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