             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                            JANUARY 1999 SESSION
                                                             April 21, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
ROCKY LEE COKER,                    )
                                    )   C.C.A. NO. 01C01-9804-CC-00152
             Appellant,             )
                                    )   SEQUATCHIE COUNTY
VS.                                 )
                                    )   HON. WILLIAM S. RUSSELL,
STATE OF TENNESSEE,                 )   JUDGE
                                    )
             Appellee.              )    (Post-Conviction)



FOR THE APPELLANT:                      FOR THE APPELLEE:


ROBERT S. PETERS                        JOHN KNOX WALKUP
100 First Ave., Southwest               Attorney General & Reporter
Winchester, TN 37398
       -and-                            DARYL J. BRAND
JOSEPH E. FORD                          Asst. Attorney General
17 South College St.                    John Sevier Bldg.
Winchester, TN 37398                    425 Fifth Ave., North
                                        Nashville, TN 37243-0493

                                         J. MICHAEL TAYLOR
                                         District Attorney General
                                         265 Third Ave., Suite 300
                                         Dayton, TN 37321




OPINION FILED:____________________



APPEAL DISMISSED


JOHN H. PEAY,
Judge
                                      OPINION



              The petitioner, who was convicted of first-degree murder and sentenced to

death, petitioned for post-conviction relief. The post-conviction court granted relief in part,

dismissed the balance of the petition, and remanded for resentencing. Following the

resentencing hearing, the petitioner appealed. We dismiss the defendant’s appeal

because it was not timely perfected.



              In 1989, the petitioner filed a pro se petition for post-conviction relief

alleging ineffective assistance of counsel in both the guilt and penalty phases of his trial.

Although he was appointed counsel, no amended petition was filed, but after three

petitioner-requested continuances, the parties met with the post-conviction court to

narrow the issues and “discuss the proper procedure of this case.” At this meeting,

counsel for the petitioner represented to the post-conviction court that a review of the trial

transcript would establish the ineffectiveness of the petitioner’s trial counsel.           By

agreement of the parties, the post-conviction court judge read the trial transcripts, after

which he entered a written order dated April 22, 1996. In this order, the post-conviction

court dismissed the petition to the extent it challenged the conviction, finding that all

issues had been previously determined or waived or were facially without merit. Finding

that the petitioner’s sentencing hearing was “fatally flawed,” however, the post-conviction

court sustained the petition to the extent it challenged the sentence and remanded it for

a new sentencing hearing. No appeal was taken from this April 1996 order.



              Nearly one month later, the Tennessee Supreme Court appointed the post-

conviction court judge to preside over the petitioner’s resentencing hearing.             The

defendant waived his right to have a jury set his sentence, and a nonjury resentencing



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hearing was held in August 1996. In a written order filed in September 1996, the judge

sentenced the petitioner to life imprisonment. Within thirty days, the petitioner, through

appointed counsel, filed a notice of appeal “from the final judgment entered in this action

on the 18th day of September, 1996.”



              In his brief, the petitioner argues that the trial court erred by not conducting

a full and complete hearing on that portion of the petition that raised issues concerning

the guilt phase of the petitioner’s trial. His argument, then, does not challenge the

September 1996 resentencing order, even though his notice of appeal states he is

appealing that order. See T.R.A.P. 3(f)(stating that the notice of appeal “shall designate

the judgment from which relief is sought”). Rather, his argument challenges the April

1996 order that dismissed without a hearing the portion of the petition that challenged his

conviction.



              A defendant may appeal as of right from a final judgment in a post-

conviction proceeding.     T.R.A.P. 3(b).    The petitioner treats the September 1996

resentencing order as if it were the final judgment in his post-conviction proceeding, but

this order is not a product of the post-conviction proceeding. The petitioner’s post-

conviction case was concluded when the court entered the April 1996 order that granted

post-conviction relief in part and dismissed the balance of the petition. See T.C.A. § 40-

30-122 (1990)(repealed 1995)(“The order granting or denying relief under the provisions

of this chapter shall be deemed a final judgment, and an appeal may be taken to the

court of criminal appeals in the manner prescribed by the Tennessee Rules of Appellate

Procedure.”). Because the April 1996 order was the final judgment in his post-conviction

proceeding, the petitioner should have filed a notice of appeal within thirty days of that

order, rather than the September 1996 order, if he wished to appeal the post-conviction



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court’s ruling on his petition for post-conviction relief. T.R.A.P. 4(a). Although timely filing

of a notice of appeal is not jurisdictional in criminal cases, the petitioner has not shown

how waiving timely perfection of his appeal would be in the interest of justice. See

T.R.A.P. 4(a). Accordingly, his appeal is dismissed.




                                                    _______________________________
                                                    JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID H. WELLES, Judge



______________________________
JERRY L. SMITH, Judge




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