             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                               AT KNOXVILLE
                                                                    January 11, 2000

                          DECEMBER 1999 SESSION                    Cecil Crowson, Jr.
                                                                  Appellate Court Clerk




DEXTER L. WILLIAMS,            )
                               )
             Appellant,        )    No. E1999-00871-CCA-R3-PC
                               )
                               )     Blount County
v.                             )
                               )    Honorable W. Dale Young, Judge
                               )
STATE OF TENNESSEE,            )    (Post-conviction)
                               )
             Appellee.         )



For the Appellant:                  For the Appellee:

Dexter L. Williams, Pro Se          Paul G. Summers
N.E.C.C.                            Attorney General of Tennessee
Post Office Box 5000                       and
Mountain City, TN 37883-5000        Clinton J. Morgan
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    Michael L. Flynn
                                    District Attorney General
                                            and
                                    Edward P. Bailey, Jr.
                                    Assistant District Attorney General
                                    942 E. Lamar Alexander Parkway
                                    Maryville, TN 37804




OPINION FILED:____________________



REVERSED AND REMANDED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, Dexter L. Williams, appeals as of right from the Blount

County Criminal Court’s dismissal of his petition for post-conviction relief from his 1993

first degree murder conviction and resulting life sentence. See State v. Dexter Lee

Williams, No. 03C01-9312-CR-00390, Blount County (Tenn. Crim. App. Jan. 9, 1995),

app. dismissed (Tenn. Feb. 5, 1996). The petitioner contends that the trial court erred

in summarily dismissing his petition without affording him a full and meaningful hearing

on the evidence he presented. We reverse the trial court and remand the case.



              The petitioner filed a pro se petition for post-conviction relief on October

24, 1996, asserting fifteen grounds for relief, most claiming the ineffective assistance of

counsel. The trial court appointed the petitioner an attorney who filed an amendment to

the petition. The state answered the petition as amended, denying any merit to the

petitioner’s claims. Later, the petitioner’s attorney was allowed to withdraw because his

secretary was related to the victim. The trial court appointed new counsel but allowed

him to withdraw upon his and the petitioner’s separate requests. The withdrawal order

entered on July 16, 1998, reflects that the petitioner requested and was allowed to

proceed pro se with the case.



              On February 22, 1999, the petitioner moved for the trial court to set a

hearing date on his petition and filed a pro se amendment to his petition. The state

filed an answer on March 23, 1999. The record reflects that the parties appeared in the

trial court on March 26, 1999, with the trial court intending to hear the case. However, a

colloquy between the petitioner and the trial court occurred, with the petitioner

complaining that he had not been provided all the case records he had requested; that

his requests that subpoenas issue for specified witnesses, including his trial attorney,




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had not been honored; and that his motion for expert services was still pending. The

petitioner said that he was not prepared to go forward because of such shortcomings.

He indicated that he had received short notice of the hearing date. The trial court

dismissed the petition.



              The petitioner contends that he was not provided a full and fair hearing on

his claims for relief. He argues that the trial court violated his right to due process of

law by not allowing such a hearing.



              The state’s two-sentence argument in its brief fails to address the

petitioner’s contentions and arguments in this appeal. However, in its statement of the

case, it states that the petitioner filed his petition more than one year after the final

action of the Tennessee appellate courts in his convicting case. It asserts that because

the statute of limitations had run, the trial court was without jurisdiction to entertain the

petition and should have dismissed it summarily. See Tenn. Code Ann. 40-30-202(b),

-206(b).



              First, as a matter of procedure, we note that if the state, as the appellee,

desired to raise the statute of limitations as an issue in this appeal, it was required to

present it as a separate, specified issue in its brief. See State v. Hayes, 894 S.W.2d

298, 300 (Tenn. Crim. App. 1994). It did not do so. Ordinarily, this would result in a

waiver of the issue. However, given the particular nature of the statute of limitations

under the 1995 Post-Conviction Procedure Act and the fact that we otherwise would

remand this case to the trial court for further hearing, we must address it in this appeal.



              As previously indicated, this court affirmed the petitioner’s conviction on

January 9, 1995. The petitioner’s application for permission to appeal was dismissed




                                              3
on February 5, 1996, as untimely filed, the Tennessee Supreme Court being without

jurisdiction to grant the appeal. From the state’s perspective, this means that the one-

year statute of limitations began to run from January 9, 1995, the date this court filed its

opinion and judgment. Thus, the petition filed on October 24, 1996, was too late.



               The petitioner alleges in his petition that his appointed trial counsel filed

the application for permission to appeal on or about November 8, 1995. Thus,

ostensibly, counsel in the convicting case purportedly continued to act as the

petitioner’s counsel through the filing of the application. The petitioner has alleged that

his attorney was ineffective on appeal. What ramifications, if any, these circumstances

may have on the issue of the statute of limitations should await further development of

the record in the trial court.



               As to the petitioner’s contentions on appeal, we believe that they have

sufficient merit to remand this case for further hearing. The record reflects that the

petitioner requested that subpoenas be issued for various witnesses, including his trial

attorney. No reason is shown why the request was not honored. It is apparent that the

March 26, 1999, “hearing” was held by the trial court in response to the petitioner’s

February 22, 1999, request for a hearing. However, the petitioner presented sufficient

reasons why the trial court should not proceed on the date set. Without addressing the

petitioner’s concerns but focusing only upon the petitioner’s request for a hearing, the

trial court dismissed the case because the petitioner presented no evidence. Under the

circumstances, this was error.



               Given the state of the record, we remand the case for a hearing, initially to

address the circumstances of the petitioner’s direct appeal, of the application for

permission to appeal, and of trial counsel’s relationship to the application – as all relate




                                               4
to the issue of the statute of limitations. Any further hearing would depend upon the

trial court’s decision on that issue.




                                         _________________________________
                                         Joseph M. Tipton, Judge



CONCUR


_____________________________
David H. Welles, Judge



_______________________________
Jerry L. Smith, Judge




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