Keith Wooten v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
APRIL 1998 SESSION
May 28, 1998
Cecil W. Crowson
KEITH DOUGLAS WOOTEN, * Appellate Court Clerk
C.C.A. # 01C01-9703-CR-00111
Appellant, * WILSON COUNTY
VS. * Hon. J.O. Bond, Judge
STATE OF TENNESSEE, * (Post-Conviction; Armed Robbery)
Appellee. *
For Appellant: For Appellee:
Peter B. Halverstadt John Knox Walkup
Attorney at Law Attorney General and Reporter
P.O. Box 158521
Nashville, TN 37215 Elizabeth B. Marney
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243-0493
David Durham
Assistant District Attorney General
111 Cherry Street
Lebanon, TN 37087
OPINION FILED:__________________________
JUDGMENT IN C.C.A. NO. 01C01-9303-CR-00078
VACATED AND REINSTATED
GARY R. WADE, JUDGE
ORDER
On March 16, 1989, the petitioner was convicted of two counts of
armed robbery. The trial court imposed concurrent, Range II sentences of thirty-five
years on each count. Because the convictions were pursuant to a plea agreement,
there was no direct appeal.
Thereafter, the petitioner filed a petition for post-conviction relief
alleging as grounds that his counsel had performed ineffectively. The trial court
denied the claim and, on direct appeal, this court affirmed. Keith Douglas Wooten v.
State, No. 01C01-9303-CR-00078 (Tenn. Crim. App., at Nashville, July 22, 1993).
After a review of the record, this court concluded that the petitioner, who was "no
stranger to the criminal justice system," had as his "motivation to plead guilty ... his
fear of consecutive sentences." Id., slip op. at 4. The determination of the court
was that the petitioner "appreciated the fact that his convictions would not increase
the total amount of time he would serve" due to sentences for other crimes. Id.
Counsel for the petitioner withdrew after the entry of the July 22, 1993
opinion. Due to clerical error, the petitioner was notified that the time to file an
application for permission to appeal was September 20, 1993, rather than August
21, 1993. A pro se application for permission to appeal, filed September 17, 1993,
was rejected by our supreme court as untimely.
On October 18, 1994, the petitioner filed a petition for writ of habeas
corpus in the United States District Court for the Middle District. Our state attorney
general sought a dismissal on the basis that the petitioner had not exhausted his
state remedy. The state contended that the petitioner would be entitled to a delayed
appeal because he had been denied the opportunity of second tier review in the
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Tennessee Supreme Court. The District Court dismissed the petition on that basis.
On October 11, 1995, the petitioner filed this petition for post-
conviction relief seeking second-tier review of our July 22, 1993, opinion. The trial
court ruled that it was without authority to grant the relief and dismissed the petition.
Additional pleadings seeking relief from the order of dismissal were unsuccessful
and this appeal followed.
The state has conceded in oral argument that an appropriate remedy
is an order vacating and reinstating the July 22, 1993, opinion of this court. It is so
ordered. But see Darrel D. Hayes v. State, No. 01C01-9604-CR-00163 (Tenn. Crim.
App., at Nashville, Sept. 2, 1997). The petitioner may now seek a review under the
terms of Rule 11 of the Tennessee Rules of Appellate Procedure.
Costs are adjudged to the state.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
Thomas T. W oodall, Judge
_____________________________
L.T. Lafferty, Special Judge
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