         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs September 14, 2004

                ALFONZO WILLIAMS v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                         No. P-27862    Carolyn Wade Blackett, Judge



                    No. W2004-00325-CCA-R3-PC - Filed October 13, 2004


The petitioner, Alfonzo Williams, appeals the post-conviction court’s summary dismissal of his
petition for post-conviction relief, alleging that the post-conviction court erroneously found that his
petition was barred by the statute of limitations. Upon our review of the record and the parties’
briefs, we reverse the post-conviction court’s summary dismissal of the petition and remand for
further proceedings consistent with this opinion.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and
                                        Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
ALAN E. GLENN , J., joined.

Alfonzo Williams, Henning, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; and
William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

         The record reveals that the petitioner was originally tried and convicted of felony murder
(count one) and second degree murder (count two). The trial court merged the petitioner’s
conviction for second degree murder into the conviction for felony murder. On direct appeal, this
court concluded that sufficient evidence existed to support both convictions. See State v. Alfonzo
Williams, No. W2001-00452-CCA-R3-CD, 2002 WL 1482695, at *4 (Tenn. Crim. App. at Jackson,
March 15, 2002). Nevertheless, this court reversed the petitioner’s conviction for felony murder due
to the trial court’s failure to properly instruct the jury as to lesser-included offenses. Id. at *6. This
court’s opinion provided that

                the conviction for felony murder in count one is reversed; count one
                is remanded for a new trial for the indicted offense of felony murder
               and all lesser-included offenses; the guilty verdict for second degree
               murder in count two is affirmed; no judgment of conviction under
               count two for second degree murder shall be entered pending
               disposition of count one.

Id. at *7 (emphasis added). Our supreme court denied permission to appeal on September 23, 2002.

        While the record is unclear as to the events that transpired after our supreme court’s denial
of permission to appeal, the petitioner claims in his instant appellate brief that “[o]n Dec. 6, 2002
the [petitioner] was sentenced to 20 years for Second degree Murder in return for Nolle Prosequi on
count one (1) of his original indictment.” However, there is no evidence in the record to support or
refute the petitioner’s claim.

        On November 14, 2003, the petitioner filed a petition for post-conviction relief, alleging,
among other grounds, ineffective assistance of counsel. The post-conviction court dismissed the
petition without appointment of counsel or an evidentiary hearing. The post-conviction court
determined that September 23, 2002, the date our supreme court denied permission to appeal, was
the date that triggered commencement of the post-conviction statute of limitations. Therefore, the
court found that the petitioner’s petition for post-conviction relief, which was filed on November 14,
2003, was untimely. The petitioner currently appeals this ruling, asserting that “his petition was
timely filed pursuant to the statutory guidelines set forth because his conviction did not become final
until the expiration of his original conviction.” In response, the State maintains that the post-
conviction court correctly found the petition to be untimely.

                                            II. Analysis

       Initially, we note that “[r]elief under [the Post-Conviction Procedure Act] shall be granted
when the conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code
Ann. § 40-30-103 (2003). However, to obtain relief,

               a person in custody under a sentence of a court of this state must
               petition for post-conviction relief under this part within one (1) year
               of the date of the final action of the highest state appellate court to
               which an appeal is taken, or if no appeal is taken, within one (1) year
               of the date on which the judgment became final, or consideration of
               such petition shall be barred.

Tenn. Code Ann. § 40-30-102(a) (2003); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001).

       As we noted earlier, the post-conviction court utilized the date our supreme court denied
permission to appeal, September 23, 2002, as the date from which the statute of limitations for post-


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conviction relief began to run. Again, we note that this court’s opinion on direct appeal clearly states
that “no judgment of conviction under count two for second degree murder shall be entered pending
disposition of count one.” Williams, No. W2001-00452-CCA-R3-CD, 2002 WL 1482695, at *7
(emphasis added). Further, this court reversed the petitioner’s conviction for felony murder and
remanded for a new trial. Id. Accordingly, at the time the supreme court denied permission to
appeal, there was no final judgment of conviction from which the petitioner could appeal or seek
post-conviction relief. Therefore, the September 23, 2002, date utilized by the post-conviction court
was not the correct date for triggering the post-conviction statute of limitations. Cf. Alvin
Featherstone v. State, No. M1999-01871-CCA-R3-PC, 2000 WL 1278163, at *1 (Tenn. Crim. App.
at Nashville, Sept. 8, 2000).

        Regrettably, the record before us does not definitively show the date that the judgment(s)
against the petitioner became final. Thus, we are unable to determine the timeliness of his post-
conviction petition. Ergo, we conclude that we must reverse the post-conviction court’s summary
dismissal of the petition and remand for a determination of the timeliness of the petition based upon
the date the petitioner’s judgment(s) of conviction became final. If the petition was timely filed, the
post-conviction court should consider whether the petitioner has stated a colorable claim for relief
and proceed accordingly.

                                           III. Conclusion

       Based upon the foregoing, we reverse and remand the judgment of the post-conviction court.



                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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