                                                                                            01/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 7, 2017


               WARREN PRATCHER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 14-05852     J. Robert Carter, Jr., Judge


                             No. W2017-00300-CCA-R3-PC



JAMES CURWOOD WITT, JR., J., concurring.

               I respectfully concur separately in this case to clarify a distinction between,
on the one hand, the post-conviction court’s ordering a dismissal of the first petition with
prejudice and, on the other hand, the petitioner’s waiver of post-conviction relief upon
the voluntary dismissal of the first petition. Although I believe the latter may be
effectual, I believe the former is not effectual apart from the petitioner’s waiver.

              The order of dismissal of the first petition recited that the petitioner was
“advised that his withdrawal [of the first petition] would constitute a waiver of the issues
and [that] he agreed that the dismissal of his petition would be ‘final.’” Based upon the
state of the appellate record and notably the absence of a transcript of the hearing
attendant to withdrawal of the first petition, we presume the petitioner’s effective waiver
of his post-conviction claims. On that basis, I concur in affirming the lower court’s
order.

                It should be emphasized, however, that a post-conviction petitioner has an
unfettered right to withdraw his petition prior to a hearing “without prejudice to any
rights to refile.” T.C.A. § 40-30-109 (c). Absent waiver of that right, the post-conviction
court may not impose upon the petitioner’s withdrawal of the petition a restriction that
bars refiling.



                                              __________________________________
                                              JAMES CURWOOD WITT, JR., JUDGE
