           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                               Assigned on Briefs September 19, 2001

                            STATE OF TENNESSEE v. RITA DAVIS

                      Direct Appeal from the Circuit Court for Marshall County
                              Nos. 13809; 14296    Charles Lee, Judge



                       No. M2000-03227-CCA-R3-CD - Filed November 9, 2001


The Appellant, Rita Davis, pled guilty to one count of failure to appear, a class E felony, and was
sentenced as a career offender to six years confinement. No direct appeal of her sentence was taken.
Davis then filed a petition for post-conviction relief, requesting (1) a delayed direct appeal of her
sentence; and (2) that her conviction be vacated upon grounds: (a) that her guilty plea was
involuntarily entered based upon ineffective assistance of counsel; and (b) that her conviction was
obtained in violation of “constitutional due process rights.”1

After review, we find that the post-conviction court’s consolidation of issue (1), granting the direct
appeal of her sentence, and issue (2), the collateral review of Davis’ challenge to her conviction
through post-conviction process, conflicts with our previous holding in Gibson v. State, 7 S.W.3d
47 (Tenn. Crim. App. 1998). Thus, consistent with Gibson, we reverse and remand issue (2) with
instructions that Davis’ collateral attack of her conviction be dismissed without prejudice. With
respect to issue (1), we grant review of Davis' six-year sentence. After review, we find this issue is
without merit and affirm her sentence as imposed.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Reversed and Remanded in Part and
                                   Affirmed in Part.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY
L. SMITH, J., joined.

John H. Dickey, Fayetteville, Tennessee, for the Appellant, Rita Davis.



       1
           Davis frames this issue as follows:

       Whether the Defend ant’s constitutiona l due proc ess rights were violated when she was arrested on a
       warrant for contempt of court following her failure to appear a s a witness in Lew isburg City Co urt,
       thereby rendering h er ensuing arr est for contem pt of court and poss ession with intent to distribute
       invalid, and her subsequen t conviction for Possess ion of Schedule II for Resale and guilty plea for
       Failure to Appear fruits of the poisonous tree.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Weakley E.
Barnard, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                                          OPINION

                                                  Factual Background

         On December 3, 1998, Tennessee Highway Patrol Officer, Jimmy Pitts, stopped the
Appellant’s vehicle for the purpose of serving an outstanding arrest warrant which had been issued
for the Appellant. The Appellant, who was a passenger in her vehicle, was placed under arrest.2 At
the time of the stop, the Appellant was seated on the front passenger side of the automobile and the
Appellant’s sister was driving the vehicle. After removing the Appellant’s purse from the vehicle,
officers found fifteen individually wrapped packages of crack cocaine inside her purse. As a result
of this seizure, the Appellant was subsequently indicted and later convicted by a jury of felony drug
possession with the intent to sell.

        On February 1, 1999, the Appellant failed to appear in the Lewisburg City Court for the
preliminary hearing on her drug charge. As a result, the Appellant was indicted for failure to appear,
a class E felony. On August 9, 1999, following her jury conviction for class B felony possession, the
Appellant pled guilty to the failure to appear charge. On August 18, 1999, the trial court sentenced
the Appellant to twenty-five years for her conviction for felony drug possession and to six years for
failure to appear.3

                                              I. Post-Conviction Petition

        After finding that the Appellant was denied first-tier review of her sentence, the post-
conviction court granted the Appellant’s request for a delayed appeal and, after review, denied all
other requests for post-conviction relief. On appeal, the Appellant contends, by way of a direct
appeal, that her six-year sentence was excessive and contends, by way of post-conviction process,
that her conviction is void.

        The minimum requirements to assure that an Appellant’s due process rights are protected on
appeal are defined in Rule 14, Tenn. Sup. Ct. R. See State v. Brown, 653 S.W.2d 765, 766-67 (Tenn.
Crim. App. 1983). In Gibson v. State, 7 S.W.3d 47, 50 (Tenn. Crim. App. 1998), this court set forth


          2
            T he Appellan t had previo usly taken out a w arrant against h er boyfriend , Adrian H ill, for an assault. On
November 30, 199 8, the App ellant failed to ap pear in the Lewisbu rg City Cour t to testify against Hill. T he Appe llant’s
failure to appear resulted in a warrant being issued for her arrest for con tempt of co urt for failure to ap pear as the a ffiant.

          3
          Appellant appealed her conviction and sentence received on the felony possession charge. This court affirmed
both the convictio n and senten ce. See State v. Rita D avis, No. M 1999-01281-CCA-R3-CD (Tenn. Crim. App. at
Nashville, Se pt. 22, 20 00), perm. to app. denied, (Tenn. March 12, 2001 ).

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the procedure to be followed by the post-conviction court when granting a delayed appeal that has
been consolidated with a collateral attack of the conviction, where an appellant, through no fault of
his or her own, has been denied the opportunity to timely perfect an appeal:

        [T]he better procedure is for the trial court to grant the delayed appeal, when
        warranted, and dismiss the collateral attack upon the conviction without prejudice.
        We are cognizant of the statutory provision which contemplates the filing of only one
        petition for post-conviction relief from a single judgment. Tenn. Code Ann. § 40-30-
        202(c). This statute provides that if a petition has been resolved on its merits, a
        subsequent petition must be summarily dismissed. Tenn. Code Ann. §§ 40-30-
        202(c); 40-30-206(b). Conversely, we interpret this to mean that those petitions not
        resolved “on their merits” are not subject to dismissal. Id. This procedure would
        allow the appellant to pursue his post-conviction relief after review from the supreme
        court.

Gibson, 7 S.W.3d at 50; see also State v. Abebreellis Zandus Bond, No. W1999-02593-CCA-R3-CD
(Tenn. Crim. App. at Jackson, Feb. 21, 2001); Johnny Bernard Jones v. State, W2000-01241-CCA-
R3-PC (Tenn. Crim. App. at Jackson, Nov. 9, 2000); Jay A. Cameron v. State, No. M1998-00005-
CCA-R3-CD (Tenn. Crim. App. at Nashville, Aug. 18, 2000), perm. to appeal denied, (Tenn. Feb.
20, 2001). A petition for post-conviction relief, complaining of the original conviction and sentence,
may not be maintained while a direct appeal of the same conviction and sentence is being prosecuted.
Gibson, 7 S.W.3d at 49; Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992). To do otherwise would
permit two appeals to be entertained at the same time.

        Thus, in the present case, the proper procedure would have been for the post-conviction court
to grant the delayed appeal on the sentencing issue and dismiss the remaining issues without
prejudice. Because a post-conviction petition may not be filed until the final judgment of the highest
court has been entered, see Tenn. Code Ann. § 40-30-202, the instant petition for post-conviction
relief was prematurely filed and should have been dismissed accordingly. By not dismissing the
remaining issues raised in the Appellant’s petition for post-conviction relief, the post-conviction
court has, in effect, waived the Appellant’s right to later seek review of any appellate counsel errors
contained in the direct appeal.4 See also State v. Bond, No. W1999-02593-CCA-R3-CD (Tenn.
Crim. App. at Jackson, Feb. 21, 2001).5

       Accordingly, we remand issue (2) and any additional issues contained therein to the Circuit
Court of Marshall County for dismissal of this issue without prejudice. In conformity with Gibson,
the Appellant may refile her petition for post-conviction relief alleging these and other cognizable

        4
          Tennessee Code Annotated § 40-30-202(c) provides: “In no event may more than one (1) petition for post-
conviction relief be filed attac king a final judg ment.”

        5
         W e would acknowledge that the holding in Gibson applies on ly to a Tenn . R. App. P . 3 delayed appeal.
Tennessee Supreme Court Rule 28 § 9(D), as amended on May 8, 2001, sets forth the proper procedure to be followed
when granting a Tenn. R . App. P. 1 1 delayed appeal.

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claims, “[W]ithin one (1) year of the date of the final action of the highest state appellate court to
which an appeal is taken . . . .” Tenn. Code Ann. § 40-30-202(a). With respect to the Appellant’s
delayed appeal (issue (1)), we elect to address this issue on its merits.

                                                  II. Delayed Appeal

       The trial court sentenced the Appellant, as a Range III career offender, to six years
confinement at sixty percent for failure to appear, a class E felony. The Appellant argues that the
six-year sentence imposed by the trial court was “excessive” and not the least severe measure
necessary to achieve the purpose for which the sentence was intended. The Appellant does not,
however, contest her classification as a Range III, career offender.

        A “defendant who is found by the court beyond a reasonable doubt to be a career offender
shall receive the maximum sentence within the applicable Range III.” Tenn. Code Ann. § 40-35-
108(c).6 Accordingly, a defendant sentenced as a career offender must receive the maximum
sentence within Range III pursuant to the provisions of subsection (c). Tenn. Code Ann. § 40-35-
108, Sentencing Commission Comments.7 The maximum sentence and parole eligibility for persons
having this type of extensive criminal record is in keeping with the sentencing purposes set forth in
§ 40-35-102. Tenn. Code Ann. § 40-35-108, Sentencing Commission Comments.

        In cases such as the one before us, a trial court has no discretion with respect to the length
of the sentence and must impose the maximum sentence pursuant to Tenn. Code Ann. § 40-35-108.
This issue is without merit.

                                                    CONCLUSION

        After review, we find that the post-conviction court’s consolidation of the Appellant's direct
and post-conviction appeal conflicts with our previous holding in Gibson. Thus, we reverse the post-
conviction court’s ruling on issue two (2) and remand to the Marshall County Circuit Court for
further proceedings in conformity with Gibson.




         6
           Tennessee Code Annotated § 40-35-108(a)(3) defines a career offender as a person who has received at least
six prior felon y convictions of any classification if the defenda nt’s conviction offense is a class D or E felony.

         7
             The record reflects that the following colloquy occurred at the Appellant’s guilty plea hearing:

         Prosecutor: We are alleging that she is a career offender in [this] case.
         Trial Court: Do you unders tand that your sentence in this m atter would be six years if you are found
         to be a career offender?
         Appellant: Yes, sir.

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       With respect to the Appellant's direct appeal, we find that the maximum six-year sentence
imposed by the trial court was statutorily required and not excessive pursuant to Tenn. Code Ann.
§ 40-35-108(c). Accordingly, the six-year sentence imposed by the trial court is affirmed.




                                                     ___________________________________
                                                     DAVID G. HAYES, JUDGE




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