            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1998

                                                              FILED
                                                               October 16, 1998
HANSON L. DAVIS,              )
                              )    No. 02C01-9804-CC-00104
                                                         Cecil Crowson, Jr.
      Appellant               )                               Appellate C ourt Clerk
                              )    MADISON COUNTY
vs.                           )
                              )    Hon. Franklin Murchison, Judge
STATE OF TENNESSEE,           )
                              )    (Writ of Error Coram Nobis)
      Appellee                )



For the Appellant:                 For the Appellee:

Hanson L. Davis, #126095, Pro Se   John Knox Walkup
Cold Creek Correctional            Attorney General and Reporter
Box 1000
Henning, TN 38041                  Georgia Blythe Felner
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   James G. (Jerry) Woodall
                                   District Attorney General

                                   Al Earls
                                   Asst. District Attorney General
                                   P. O. Box 2825
                                   Jackson, TN 38302




OPINION FILED:

APPEAL DISMISSED



David G. Hayes
Judge
                                        ORDER



       The appellant, Hanson L. Davis, proceeding pro se, appeals from the

voluntary dismissal of his petition for writ of error coram nobis in the Madison County

Circuit Court. Finding that this cause is not properly before this court, the

appellant’s appeal is dismissed.




                               Procedural Background



       The present action stems from the appellant’s 1989 convictions for

aggravated rape, aggravated kidnapping, and assault. The convictions were

affirmed on direct appeal to this court. See State v. Davis, No. 7 (Tenn. Crim. App.

at Jackson, Jan. 3, 1990). In November 1990, the appellant filed his first petition for

post-conviction relief alleging ineffective assistance of counsel. The trial court’s

subsequent dismissal of this petition was affirmed on appeal by this court. See

Davis v. State, No. 02C01-9104-CC-00064 (Tenn. Crim. App. at Jackson, Apr. 8,

1992), perm. to appeal denied, (Tenn. June 22,1992), reh’g denied, (Tenn. 1995).

A second post-conviction petition was filed on November 16, 1994. This petition

was summarily dismissed by the trial court on November 29, 1994. Again, this court

affirmed the trial court’s dismissal of the appellant’s petition. Davis v. State, No.

02C01-9605-CC-00144 (Tenn. Crim. App. at Jackson, Mar. 11, 1997), perm. to

appeal denied, (Tenn. Jul. 21, 1997).



       On March 17, 1997, the appellant filed a petition for writ of error coram nobis

alleging newly discovered evidence in the form of the victim’s recantation of her

previous statements and testimony. On March 2, 1998, the trial court granted the




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appellant’s oral motion to withdraw his petition. The appellant now appeals from this

withdrawal.1



                                             Analysis



        The law is well-established that a defendant may not appeal from a voluntary

withdrawal of his petition. See Finney v. State, No. 01C01-9610-CR-00417 (Tenn.

Crim. App. at Nashville, Sept. 30, 1997). An appeal as of right by a criminal

defendant only lies from a final judgment entered by the trial court. Tenn. R. App. P.

3(b). A judgment is final “when it decides and disposes of the whole merits of the

case leaving nothing for the further judgment of the court.”            Richardson v.

Tennessee Brd. of Denistry. 913 S.W.2d 446, 460 (Tenn. 1995); Saunders v.

Metropolitan Gov’t of Nashville & Davidson County, 383 S.W.2d 28, 31 (Tenn.

1964). In other words, a judgment is final if it decides the controversy between the

parties on the merits and fixes their rights so that, if the judgment is affirmed,

nothing remains for the trial court to do but to proceed with its execution. See State

v. Arms, No. 01C01-9511-CC-00374 (Tenn. Crim. App. at Nashville, Sept. 5, 1996).

In the present case, there is no adjudication on the merits of the appellant’s petition

for writ of error coram nobis as the trial court merely granted the appellant’s oral

motion to voluntarily withdraw the same. Accordingly, this court is without the

authority to resolve the petition on its merits. See Tenn. R. App. P. 36(a) (“relief

may not be granted in contravention of the province of the trier of fact”).

Additionally, appellate relief need not be granted to a party who fails to take

whatever action is reasonably available to prevent or nullify the harmful effect of

error. Tenn. R. App. P. 36(a). Accordingly, the appellant’s failure to present the




        1
          We note that, in his brief, the appellant’s challenges are based upon alleged ethical
violations committed by the prosecutor and defense counsel’s obligation to protect the appellant
from the prosecutor’s improper conduct. These issues are not cognizable in a writ of error coram
nob is, see Tenn. Code Ann.40-26-105(1997), and are contrary to the claim raised in the
appellant’s petition.

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issue to the trial court, by voluntarily removing his petition, denies him appellate

review. Id.



       For the foregoing reasons, this appeal is dismissed.     It appearing that the

appellant is indigent, the costs of this appeal will be paid by the State of Tennessee.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:




____________________________________
JOHN H. PEAY, Judge


____________________________________
L. T. LAFFERTY, Senior Judge




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