                 IN THE SUPREME COURT OF TENNESSEE

                            AT JACKSON

                        HEARD IN DYERSBURG




VICTOR JAMES CAZES             )   FOR PUBLICATION
                               )
           Appellant           )   FILED: OCTOBER 26, 1998
                               )
v.                             )   SHELBY COUNTY
                               )
STATE OF TENNESSEE             )   HON. L. T. LAFFERTY, JUDGE
                               )
             Appellee          )   NO. 02-S-01-9707-CR-00064


                                                        FILED
                                                        October 26, 1998
For Appellant:                 For Appellee:
                                                   Cecil Crowson, Jr.
PETER D. HEIL                  JOHN KNOX WALKUP     Appellate C ourt Clerk
Nashville, TN                  Attorney General and Reporter

                               MICHAEL E. MOORE
                               Solicitor General

                               ELIZABETH T. RYAN
                               Assistant Attorney General
                               Nashville, TN

                               WILLIAM L. GIBBONS
                               District Attorney General

                               JOHN W. CAMPBELL
                               Assistant District Attorney General
                               Memphis, TN




                              OPINION




AFFIRMED                                                     BIRCH, J.
               We    granted       Victor   James       Cazes’s     application       for

permission      to       appeal,   pursuant     to    Tenn.   R.   App.   P.   11,1    to

determine whether the dismissal with prejudice of a post-conviction

petition bars consideration of a subsequent one.                    We conclude that

the dismissal with prejudice compels dismissal of a later petition

that is predicated on grounds in existence prior to the dismissal

of the former petition.



               The appellant was convicted of aggravated rape, assault

with       intent   to    commit    first-degree       murder,     and   second-degree

burglary.       The Court of Criminal Appeals affirmed the convictions,

and we denied permission to appeal on August 5, 1991.



               The petition before us is the appellant’s fourth.                      The

trial court permitted him to withdraw the first two petitions

without prejudice.             When, however, he requested permission to

withdraw the third petition, the trial court held a hearing and

explained to Cazes that he could not regard his petition in such a

whimsical or cavalier manner.               While acting abusively toward the

trial court and his counsel, Cazes demanded that the trial court

permit withdrawal of the petition.                   Consequently, the trial court

dismissed the third petition with prejudice.



               On motion by the State, the trial court also dismissed

the present petition, the appellant’s fourth.                     The court based the



       1
      Oral argument was heard in this case on March 4, 1998, in
Dyersburg, Dyer County, Tennessee, as part of this Court’s
S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students)
project.

                                            2
dismissal, in part, on the fact that the third petition was

dismissed with prejudice. The court also found that several issues

were either waived or previously determined under Tenn. Code Ann.

§ 40-30-112 (1990) (repealed).            The Court of Criminal Appeals

affirmed, holding that “[t]he dismissal of the appellant’s prior

suit with prejudice effectively ended the appellant’s right to file

additional suits for post-conviction relief predicated upon grounds

occurring prior to the time of the dismissal.”           Whether the prior

dismissal with prejudice compels the dismissal of the present

petition is a question of law which we review de novo.            See State

v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997).



          This case is governed by the now-repealed Post-Conviction

Procedure Act, Tenn. Code Ann. § 40-30-101 et seq. (1990).2          Under

Tenn. Code Ann. § 40-30-115(a) (1990) (repealed), the trial court

may permit a petitioner to withdraw a post-conviction petition at

any time prior to entry of judgment.            Therefore, the permitted

withdrawal of a post-conviction petition does not necessarily

preclude the later filing of another petition for post-conviction

relief.   Williams v. State, 831 S.W.2d 281, 282 (Tenn. 1992) (“A

defendant who, with leave of court, voluntarily withdraws a post-

conviction   petition   may   later       reinstitute   that   petition   or



     2
      The Post-Conviction Procedure Act of 1995, Tenn. Code Ann. §
40-30-201 et seq., has replaced the old Act.         Tennessee Code
Annotated § 40-30-209(c) (1997) provides that a petitioner may
withdraw a petition at any time prior to the hearing without
prejudice to any rights to refile. In addition, petitioners are now
limited by a shorter statute of limitations, which provides one year
after final action is taken on a case for the filing of post-
conviction petitions. Tenn. Code Ann. § 40-30-202(a) (1997). These
provisions appear to preclude the issue in this case from occurring
under the new law.

                                      3
substitute a new petition for it, without fear of being denied

adjudication on the merits." (emphasis added)); Albert v. State,

813 S.W.2d 426, 427-28 (Tenn. 1991).



                However, the right to file and withdraw post-conviction

petitions is limited:


                       If, for example, the trial judge
                       discerns that a litigant is abusing
                       the   post-conviction  process   by
                       filing successive petitions and
                       seeking repeated withdrawals, or is
                       otherwise acting in bad faith,
                       dismissal of the action for failure
                       to prosecute, with prejudice to the
                       appellant's right to refile the
                       petition, would be proper.


Williams, 831 S.W.2d at 283.                  Thus, while trial courts have

authority under Tenn. Code Ann. § 40-30-115(a) to permit withdrawal

without penalty, that statute does not require courts to suffer

interminable bad faith conduct.               The implication in Williams is

that       a   post-conviction     petition   may   be   barred   where   a   prior

petition was dismissed with prejudice or where the petitioner acted

in bad faith.



                Today we hold what in Williams we implied: the dismissal

with       prejudice    of   a   post-conviction     petition     will    bar   any

subsequent        petition   for    post-conviction      relief   predicated     on

grounds in existence prior to the dismissal.3                 The rationale is

simple:        post-conviction relief is a statutory remedy offered by


       3
      By this ruling we do not intend to foreclose relief allowable
under the due process clauses of the state and federal
constitutions. See, e.g., Burford v. State, 845 S.W.2d 204, 207
(Tenn. 1992).

                                          4
the legislature; it is not a constitutional right. Those who abuse

the process cannot be heard to complain when access to the remedy

is denied.



             Applying these criteria here, we find that the petition

before us does not raise any new issue.    Instead, the issues were

either previously raised or could have been raised.    Consideration

of this post-conviction petition is therefore barred. Because this

issue is dispositive, we see no reason to address the merits of the

petition.     Accordingly, we affirm the judgment of the Court of

Criminal Appeals and the petition is dismissed.




                                 _______________________________
                                 ADOLPHO A. BIRCH, JR., Justice


CONCUR:

Anderson, C.J.
Drowota, Holder, JJ.




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