         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs March 11, 2003

                REGINOL L. WATERS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                        No. 2000-C-1267    Steve R. Dozier, Judge



                    No. M2002-01712-CCA-R3-CO - Filed March 14, 2003


The petitioner, Reginol L. Walters, was convicted of aggravated robbery, aggravated burglary, and
two counts of aggravated rape and, while his direct appeal was pending, filed a petition pursuant to
Tennessee Code Annotated section 40-30-403 requesting forensic analysis of DNA evidence. The
post-conviction court dismissed the petition, as well as a petition to reconsider, concluding that the
petitioner could not proceed with his petition while his direct appeal was pending. Following our
review, we conclude that the applicable statute does not prohibit the petitioner from proceeding
simultaneously with a direct appeal and a petition for analysis of DNA evidence. Accordingly, we
reverse the order of the post-conviction court and remand for consideration of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G.
RILEY, J., joined.

Ross E. Alderman, District Public Defender, and Jeffrey A. DeVasher, Assistant Public Defender,
for the appellant, Reginol L. Waters.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

       The petitioner was convicted in the Davidson County Criminal Court of two counts of
aggravated rape, one count of aggravated robbery, and one count of aggravated burglary. While the
appeal of these convictions was pending with this court, but before the opinion had been issued,1 the
petitioner filed, pursuant to Tennessee Code Annotated section 40-30-403, a request for DNA
analysis of evidence in possession of the State. The statute upon which the petitioner sought the
examination, the Post-Conviction DNA Analysis Act of 2001, provides as follows:

                          Notwithstanding the provisions of Part 2 of this chapter or any
                  other provision of law governing post-conviction relief to contrary,
                  a person convicted of and sentenced for commission of first degree
                  murder, second degree murder, aggravated rape, rape, aggravated
                  sexual battery or rape of a child, attempted commission of any of
                  these offenses, any lesser included offense of these offenses, or, at the
                  direction of the trial judge, any other offense, may at any time, file a
                  petition requesting the forensic DNA analysis of any evidence that is
                  in the possession or control of the prosecution, law enforcement,
                  laboratory, or court, and that is related to the investigation or
                  prosecution that resulted in the judgment of conviction and that may
                  contain biological evidence.

Tenn. Code Ann. § 40-30-403 (Supp. 2001).

        The post-conviction court denied the request, citing Tennessee authorities not allowing a
petitioner simultaneously to pursue a direct appeal and post-conviction relief. Subsequently, the
petitioner filed an unsuccessful motion to reconsider with the post-conviction court and, then, a
notice of appeal with this court. Initially, this court denied the petition relying, as had the post-
conviction court, upon the prohibition against simultaneously pursuing a direct appeal and post-
conviction relief. However, sua sponte, we then withdrew our order of dismissal, appointed the
Davidson County Public Defender to represent the petitioner, and directed the parties to file briefs
with this court as to this issue. In those briefs, petitioner’s counsel argues that the DNA Analysis
Act specifically permits simultaneous direct appeals and requests for DNA analysis, and the State
concurs, as do we.

        Although Tennessee law is unchanged prohibiting a simultaneous direct appeal of a
conviction and a post-conviction petition, the Post-Conviction DNA Analysis Act of 2001 appears
to contain an exception, providing that such a petition may be filed “at any time.” Accordingly, we
conclude that the petition for DNA testing was not premature and may be maintained during the
direct appeal process. We reverse the order of the post-conviction court dismissing the petition and
remand for consideration as a timely petition.

                                                                  ___________________________________
                                                                  ALAN E. GLENN, JUDGE


         1
         This court’s opinion affirming the petitioner’s convictions was filed on Ja nuary 3 0, 20 03. See State v. Reginol
L. Waters, No. M 2001-02 682-CC A-R3-CD , 2003 W L 2137 77 (Tenn. Crim. Ap p. Jan. 30, 2003).

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