         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 13, 2004 Session

               ANTHONY D. CUTTLE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-20307    J. C. McLin, Judge



                  No. W2003-00684-CCA-R3-PC - Filed September 28, 2004



JOHN EVERETT WILLIAMS, J., separate concurring.


        I concur in the majority opinion. I have chosen to write separately to express concern over
two issues that appear from the record and that are not addressed by either party. Admittedly, the
record is unclear but the majority opinion concludes that the petitioner originally filed a pro se
petition for post-conviction relief, that counsel was appointed, and that the petition was summarily
dismissed in August of 1998. In February of 2001, the petitioner again filed a pro se motion to
reopen his post-conviction petition, which was granted by the post-conviction court. I found nothing
in the record that would support the reopening of the petitioner's original post-conviction relief
petition. Next, it appears that the petitioner was appointed counsel and on the second day of the
hearing, the petitioner filed a pro se amended petition for post-conviction relief and was allowed an
additional day in which to present evidence. This procedure appears to be in conflict with the
holdings of our supreme court in State v. William Lee Burkhart, 541 S.W.2d 365. The petitioner in
the instant case did not have a constitutional right to participate in propria persona and,
simultaneously, be represented by participating counsel.




                                                      ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE
