         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  January 16, 2002 Session

                     ERIC BROOKS v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                            No. 98-B-967  Seth Norman, Judge



                    No. M2000-02139-CCA-R3-CD - Filed March 12, 2002


The Defendant, Eric Brooks, pled guilty to the sale of a controlled substance and received a sentence
of twelve years to be served on Community Corrections. The Defendant was subsequently arrested
and his case officer filed an affidavit indicating that his arrest constituted a violation of his
Community Corrections program. A hearing was held, at which the Defendant was represented by
counsel, and the trial judge revoked the Defendant’s Community Corrections sentence, re-sentencing
him to fourteen years in the Department of Correction. The Defendant subsequently filed a petition
for post-conviction relief, which the trial court eventually dismissed summarily. The Defendant now
appeals from that dismissal. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL , JJ., joined.

Susan L. Kay; Ryan P. Green; and Sonja Clayton-Pedersen, Nashville, Tennessee, for the appellant,
Eric Brooks.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Pam Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The gravamen of the Defendant’s petition for post-conviction relief is that the trial court
erred by revoking his sentence of Community Corrections on the basis of an arrest and re-sentencing
him to fourteen years’ incarceration. Specifically, he claims that “a mere accusation standing alone,
is not sufficient to justify revocation of a Community Corrections Sentence.”1 As grounds for post-
conviction relief the Defendant avers that “the trial court erred in the revocation of petitioner’s
probation [sic] as per the Due Process Clause of the United States Constitution, Fourteenth
Amendment.”

        In response to this petition, the trial court filed an order finding that the petition “does not
comply with Rule 28 Section 5(e) of the Rules of the Supreme Court.”2 The trial court therefore
ordered that the Defendant had fifteen days to amend his petition in order to bring it into compliance
with Rule 28. The order further provided that if the petition was not amended within the fifteen
days, “the petition shall be dismissed.” Approximately three weeks later, the Defendant filed a
motion for extension of time in which he requested an additional fifteen days to comply with Rule
28, and in which he requested the trial court to “indicate . . . exactly what is needed to be done” to
bring the petition into compliance with Rule 28. No further pleadings or orders were filed until
August 14, 2000, ninety days after the trial court’s initial order. At that time, the trial court filed an
order dismissing the petition on the grounds that no amendment to the petition had been filed.

         The Defendant now appeals the trial court’s summary dismissal of his petition, arguing that
the trial court’s original order “did not provide him with a reasonable opportunity to amend,” and
that the trial court erred in summarily dismissing the petition because it stated a “colorable claim”
for relief on grounds of ineffective assistance of counsel. We find both arguments to be without
merit.

         Post-conviction relief is available only when there has been a violation of the petitioner’s
state or federal constitutional rights. See Tenn. Code Ann. § 40-30-203. The pleading asserting the
claim(s) for relief
                 must contain a clear and specific statement of all grounds upon which
                 relief is sought, including full disclosure of the factual basis of those
                 grounds. A bare allegation that a constitutional right has been
                 violated and mere conclusions of law shall not be sufficient to
                 warrant any further proceedings.

Id. § 40-30-206(d). Where the petition is filed pro se, as in this case, and fails to meet these criteria,
the trial court has the discretion to “enter an order stating that the petitioner must file an amended



         1
          While the Defendant is now contending that his arrest was not sufficient grounds for revocation, we note that
the amended judgm ent entered in conjunction with his re-sentencing states “sentence increased after C om mu nity
Corrections vio lation c onc eded.”

         2
           Sup. Ct. R. 28 S ection 5(E) states, in p ertinent part: “Contents of Petition -- T he petition sh all con tain: . . .
(3) each and every error that petitioner asserts as a ground for relief, including a description of how petitioner was
prejudiced by the errors(s); (4) specific facts supporting each claim for relief asserted by petition er; [and] (5) specific
facts ex plaining w hy each claim for relief wa s not p revio usly p resen ted in any earlier p roceeding; . . . .”

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petition that complies with this section within fifteen (15) days or the petition will be dismissed.”
Id.

       We have carefully reviewed the Defendant’s petition and find that the trial court did not err
in concluding that the petition did not meet the statutory criteria for further proceedings.
Accordingly, the trial court did not err in ordering the Defendant to amend his petition within fifteen
days. When the Defendant failed to amend his petition as ordered, the trial court correctly dismissed
the petition summarily. Contrary to the Defendant’s assertions, the petition does not state a
colorable claim for relief. Rather, it fails to set forth any constitutional violation other than vague
references to “due process,” and further fails to state the factual grounds underlying the alleged “due
process” violation.

        Moreover, as noted by the State, the Defendant’s basic complaint -- that the trial court erred
when, on the basis of an arrest, it revoked his Community Corrections sentence and re-sentenced him
to fourteen years’ incarceration -- could have been raised on direct appeal, and was not. This claim
has therefore been waived. See id. § 40-30-206(g).

       The judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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