IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
VINCENT HARRIS, )
)
Petitioner, ) C. C. A. NO. 02C01-9702-CR-00063
)
vs. ) SHELBY COUNTY
STATE OF TENNESSEE,
)
) No. P-16785
FILED
)
Respondent. ) January 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
The petitioner in this case was originally convicted of aggravated rape and
sentenced to twenty years imprisonment. This Court affirmed the conviction and
sentence on direct appeal. State v. Vincent Harris, No. 02C01-9110-CR-00219 (Tenn.
Crim. App., June 17, 1992). On April 24, 1996, the petitioner filed a petition for post-
conviction relief in the trial court challenging his conviction and sentence. The trial court
dismissed the petition without a hearing on May 1, 1996. The court concluded that the
statute of limitations had expired. The petitioner did not file notice of appeal therefrom,
but instead, on December 20, 1996, filed a “motion from relief of judgment or order”
pursuant to Rule 60.02, Rules of Civil Procedure. The petitioner alleged that the trial
court erroneously dismissed his petition as being time-barred. The trial court dismissed
the motion, stating that Rule 60.02 is not applicable to the petitioner’s case. The
petitioner timely filed a notice of appeal from that order, and the case in now before this
Court.
Rule 28, §3(B), Rules of the Supreme Court, provides that neither the
Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal Procedure
apply to post-conviction proceedings except as specifically provided by these rules.
Nothing in Rule 28 authorizes the application of Rule 60.02, Rules of Civil Procedure.
Accordingly, the petitioner’s “motion from relief of judgment or order” was properly
dismissed by the trial court.1
It is therefore ORDERED that the judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals. 2 Costs shall be
assessed against the petitioner.
___________________________
JERRY L. SMITH, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
J. CURWOOD WITT, JUDGE
1
Although the trial court properly dismissed the petitioner’s “motion from relief of judgment or
orde r,” its d ism issa l of the petitio n for post -con viction relief w as im prop er. T he pe titione r tim ely filed his
petition for po st-conv iction relief. See Carter v. S tate, 952 S.W .2d 417 ( Tenn . 1997); Mane y v. State,
03C01-9612-CR-00470 (Tenn. Crim. App., Oct. 10, 1997). However, because the petitioner did not file a
notice of a ppeal fro m the order of d ismiss al, this Cou rt is without juris diction to co nsider the matte r.
Mor eove r, we h ave d ecid ed th at the intere st of ju stice does not re quire waive r of th e not ice of appe al in
this case. T.R.A.P. 4(a).
2
The petitio ner a lleges on ap pea l for th e firs t time that th e indic tme nt en tered again st him is
invalid beca use it failed to s tate an ap propriate men s rea. T his issue is without m erit. See State v. Hill,
01S01-9701-C C-00005 (Te nn., Nov. 3, 1997).
2