             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE              FILED
                            NOVEMBER 1998 SESSION
                                                                December 7, 1998

                                                               Cecil W. Crowson
                                                              Appellate Court Clerk
JIMMY JONES, JR.,               )
                                )         C.C.A. No. 01C01-9804-CR-00162
      Appellant,                )
                                )         Sumner County
v.                              )
                                )         Honorable Jane Wheatcraft, Judge
STATE OF TENNESSEE,             )
                                )         (Motion to Reopen Post-Conviction Petition)
      Appellee.                 )




FOR THE APPELLANT:                        FOR THE APPELLEE:

Jimmy Jones, Jr., pro se                  John Knox Walkup
D.S.N.F. Unit 15-B                        Attorney General & Reporter
7575 Cockrill Bend Industrial Road        425 Fifth Avenue North
Nashville, TN 37209-1057                  Nashville, TN 37243-0493

                                          Kim R. Helper
                                          Assistant Attorney General
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          Lawrence Ray Whitley
                                          District Attorney General
                                          113 West Main Street
                                          Gallatin, TN 37066-2803

                                           Dee D. Gay
                                           Assistant District Attorney General
                                           113 West Main Street
                                           Gallatin, TN 37066-2803




OPINION FILED: ________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                        OPINION



         The appellant, Jimmy Jones, Jr., appeals the dismissal of his pro se motion to

reopen post-conviction petition or in the alternative a petition for habeas corpus relief by

the Sumner County Criminal Court. In December, 1987, the appellant was convicted by

a Sumner County jury on two counts of armed robbery and one count of burglary. The

appellant received concurrent Range II sentences of forty-five years for the armed robbery

convictions and fourteen years for the burglary conviction to run consecutively. On direct

appeal, the appellant alleged trial errors as to (1) the sufficiency of the evidence to sustain

the verdicts, (2) whether the trial court erred in limiting production of police reports, and (3)

whether his effective sentence of fifty-nine years was excessive. In January, 1989, this

court affirmed the judgment of the trial court in State v. Jimmy Jones, Jr., Sumner County

No. 88-58-III (Tenn. Crim. App., Nashville, January 11, 1989) per. app. denied (Tenn.

1989).



         On November 29, 1990, the appellant filed a petition for post-conviction relief and

after an evidentiary hearing, the trial court denied the petition. This court affirmed the trial

court’s decision in Jimmy Jones, Jr. v. State, Sumner County No. 01C01-9205-CC-00162

(Tenn. Crim. App., Nashville, April 15, 1993) per. app. denied (Tenn. 1993).



         On February 20, 1998, the appellant filed a motion to reopen post-conviction petition

or in the alternative a petition for habeas corpus relief. On March 24, 1998, the post-

conviction court, in a preliminary order, dismissed the motion to reopen/petition.



         We affirm the decision of the post-conviction court.



                                      LEGAL ANALYSIS



         In his motion to reopen the petition for post-conviction relief, the appellant contends

that the indictments for armed robbery and burglary were void for duplicity and the trial


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court lacked jurisdiction to try these matters.



       The post-conviction court dismissed the motion to reopen based on the following:

(1) pursuant to Tenn. Code Ann. § 40-30-202(c), the prior petition was resolved by a court

of competent jurisdiction and, therefore, any second or subsequent petition (motion) should

be dismissed; (2) pursuant to Tenn. Code Ann. § 40-30-202(a) and (b), the petition

(motion) is time barred; and (3) that the motion to reopen meets none of the requirements

of Tenn. Code Ann. § 40-30-217.



       Once a petition for post-conviction relief has been determined on its merits by a

court of competent jurisdiction and denied, a petitioner may file a motion to reopen the

petition under certain circumstances. Tennessee Code Annotated § 40-30-217(a)(1) and

(2), Motions to Reopen, states:

              A petitioner may file a motion in the trial court to reopen the
              first post-conviction petition only if the following applies:

              The claim in the motion is based upon a final ruling of an
              appellate court establishing a constitutional right that was not
              recognized as existing at the time of trial, if retrospective
              application of that right is required. Such motion must be filed
              within one (1) year of the ruling of the highest state appellate
              court or the United States supreme court establishing a
              constitutional right that was not recognized as existing at the
              time of trial; or

              The claim in the motion is based upon new scientific evidence
              establishing that such petitioner is actually innocent of the
              offense of offenses for which the petitioner was convicted.



       The appellant’s new claims do not fall within any of the conditions of Tenn. Code

Ann. § 40-30-217(a) in that the claims are not based on a new constitutional right or new

scientific evidence. Also, the motion was not filed within one (1) year of the ruling of this

court in 1993. The post-conviction court’s order dismissing the motion is affirmed.



       In its dismissal order, the post-conviction court did not address the alternative

request of the appellant to consider the merits of a petition for habeas corpus relief.

Habeas corpus relief is available only “when it appears upon the face of the judgment or



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the record of the proceedings upon which the judgment is rendered” that the convicting

court was without jurisdiction or authority to sentence a defendant, or that the defendant’s

sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). See also

Passarella v. State, 891 S.W.2d 619, 627-28 (Tenn. Crim. App.), per. app. denied (Tenn.

1994). From a review of the indictment in this record, the appellant’s argument as to the

offenses being duplicitous is not valid. The five-count indictment alleged the appellant and

two co-defendants robbed three persons at gunpoint and forced the manager of Shoney’s

Restaurant to open a locked safe on June 2, 1987.



       The appellant’s request for habeas corpus relief is subject to dismissal pursuant to

Tenn. Code Ann. § 29-21-105 which states:

              The application should be made to the court or judge most
              convenient in point of distance to the applicant, unless a
              sufficient reason be given in the petition for not applying to
              such court or judge.


       The record establishes the appellant is an inmate in the Department of Correction

in Davidson County.



       The judgment of the post-conviction court is affirmed.



                                              _____________________________________
                                              L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




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