            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                         December 10, 2002 Session

             ROBERT DALLIS PAYNE v. STATE OF TENNESSEE

                               Circuit Court for Hickman County
                                        No. 01-5075C-I



                     No. M2002-01389-CCA-R3-PC - Filed March 21, 2003


                                              ORDER

       The Appellant, Robert Dallis Payne, appeals the order of the Hickman County Circuit
Court summarily dismissing his motion to reopen his petition for post-conviction relief. Upon
review of the record before this Court, we conclude that the Appellant has failed to perfect his
application for permission to appeal in accordance with the applicable statutory provisions and,
therefore, the appeal should be dismissed.

        The Appellant was convicted of first-degree murder and received a life sentence. This
court affirmed the conviction on July 24, 1991. See State v. Robert Dallis Payne, No. 01C01-
9003-CR-00088 (Tenn. Crim. App. at Nashville, Jul. 24, 1991), perm. to appeal denied, (Tenn.
Jan. 6, 1992). The Appellant filed two petitions for post-conviction relief in 1992. Both
petitions were subsequently denied by the trial court and no appeal to this court was perfected. In
January 1997, the trial court denied the Appellant’s Motion to reopen his post-conviction
petition. On November 26, 2001, the Appellant filed a pro se petition for post-conviction relief.
Counsel filed an amended petition on December 26, 2001, alleging that the prior petition for
post-conviction relief should be reopened on the basis of new scientific evidence which
established the Appellant’s innocence. See Tenn. Code Ann. § 40-30-217(a)(2). By order dated
May 28, 2001, the trial court summarily dismissed the petition to reopen. On June 5, 2002, the
Appellant filed a “notice of appeal” document in the Hickman County Circuit Court.

         In seeking review of the trial court's denial, a petitioner shall file, within ten days of the
lower court's ruling, an application in the Court of Criminal Appeals seeking permission to
appeal. See Tenn. Code Ann. § 40-30-217(c)(1997) (emphasis added); Tenn. Sup. Ct. R. 28 §
10(b). The application shall be accompanied by copies of all the documents filed by both parties
in the trial court and the order denying the motion. Tenn. Code Ann. § 40-30-217(c)(emphasis
added); see also Tenn. Sup. Ct. R. 28 § 10(b). In the present case, Appellant has failed to
comply with the statutory requirements for seeking appellate review. Specifically, Appellant
filed his application in the wrong court and failed to attach documents filed by the parties in the
trial court including the order denying the motion.
        Section 40-30-217(c), Tennessee Code Annotated, and not Rule 3 or Rule 4, Tennessee
Rules of Appellate Procedure, governs review of a trial court’s decision to deny a motion to
reopen a post-conviction petition. Cf. George L. McGhee v. State, No. 02C01-9607-CR-00213
(Tenn. Crim. App. at Jackson, Sept. 30, 1996), perm. to appeal denied, (Tenn. Mar. 3, 1997)
(procedure seeking permission to appeal motion to reopen parallels Rule 10, Tenn. R. App. P.).
Rules 3 and 4, Tennessee Rules of Appellate Procedure, governs appeals as of right. An appeal
as of right is not available for review of a lower court’s denial of a motion to reopen a petition for
post-conviction relief. See Tenn. R. App. P. 3(b); see also John Harold Williams, Jr. v. State,
No. W1999-01731-CCA-R3-PC (Tenn. Crim. App. at Jackson, Mar. 23, 2000), perm. to appeal
denied, (Tenn. Oct. 16, 2000).

          In order to obtain appellate review of the trial court’s order, a petitioner must comply
with the statutory requirements contained in Section 40-30-217(c). See John Harold Williams,
Jr. v. State, No. W1999-01731-CCA-R3-PC; William Lee Drumbarger v. State, No. M1999-
01444-CCA-R3-PC (Tenn. Crim. App. at Nashville, Dec. 7, 1999); Lucy Killebrew v. State, No.
03C01-9809-CR-00320 (Tenn. Crim. App. at Knoxville, Oct. 5, 1999), perm. to appeal denied,
(Tenn. Apr. 24, 2000). The failure of a petitioner to comply with statutory requirements
governing review of a denial of a motion to reopen deprives this Court of jurisdiction to entertain
such matter. John Harold Williams, Jr. v. State, No. W1999-01731-CCA-R3-PC. Neither the
Post-Conviction Procedure Act nor the Rules of the Supreme Court permit this court to suspend
the statutory requirements. Id. Accordingly, this court is without jurisdiction to entertain this
matter.

        IT IS HEREBY ORDERED that this matter is DISMISSED. Since it appears that
Petitioner is indigent, costs are taxed to the State.




                                                      ____________________________________
                                                      DAVID G. HAYES, JUDGE


CONCUR:



____________________________________
JOHN EVERETT WILLIAMS, JUDGE


____________________________________
NORMA MCGEE OGLE, JUDGE
