        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             Assigned on Briefs July 28, 2009

                 JERMEIL TARTER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Sullivan County
                          No. C54,056 R. Jerry Beck, Judge




                No. E2009-00078-CCA-R3-PC - Filed February 22, 2010




J OSEPH M. T IPTON, P.J., dissenting.

      I respectfully dissent. I conclude that the case should be remanded for the
appointment of counsel and for continuing with the post-conviction proceeding.

       On August 23, 2007, the post-conviction court summarily dismissed the pro se petition
by misinterpreting the Petitioner’s list of Rule 11 issues as his factual allegations for his
claim. The court said nothing regarding the Petitioner’s actual claims, although they were
only conclusory. In response, the Petitioner filed a pro se motion to vacate the judgment,
which included allegations of fact that if taken as true, could result in post-conviction relief.
I note that the motion was not verified upon oath as required for post-conviction factual
allegations. Such omission, though, is one of form and should not result in summary
dismissal. See Tenn. Sup. Ct. R. 28 § 6(B)(4)(b).

        Because the motion was filed in the post-conviction court clerk’s office on September
26, 2007, the post-conviction court considered the motion to be more than thirty days after
the filing of the dismissal order, indicating its belief that the dismissal order was final and
not subject to change. The Petitioner, however, signed a “Declaration of Mailing” attached
to his motion to vacate that reflects he placed the motion in the “internal mail system of the
Northeast Correctional Complex” on September 20, 2007. This means that the motion was
deemed timely filed on that date. See Tenn. Sup. Ct. R. 28 § 2(G).

        The post-conviction court incorrectly relied on the Petitioner’s list of Rule 11 issues
as his factual allegations in the petition, improperly considered that the allegations in the
motion to vacate were insufficient, and improperly concluded that the motion to vacate was
untimely filed. In other words, all bases upon which the post-conviction court relied to
exercise its discretion in dismissing the Petitioner’s pleadings were incorrect. Under these
circumstances, I believe the post-conviction court should have appointed counsel to assist
the Petitioner in amending the petition and the allegations of fact in the motion into the
proper form with an appropriate verification upon oath. I would reverse the dismissal of the
petition and remand the case for further proceedings.




                                                  _________________________________
                                                  JOSEPH M. TIPTON, PRESIDING JUDGE




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