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
2
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.
3
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
4