OPINION
Richard Hammond, serving a ninety-nine year sentence imposed upon him by a jury in the Criminal Court of Hamilton County on February 1, 1963, appeals from the judgment of the trial court in Hamilton County dismissing, after an evidentiary hearing, his petition for relief heard under the Post Conviction Procedure Act. His conviction and confinement resulted from his being found guilty of unlawful carnal knowledge of a female under the age of twelve (age four). At the trial he was represented by court-appointed counsel. The record before us reflects he had on a prior occasion, March of 1964, in Davidson County petitioned for a writ of habeas corpus but at the hearing withdrew his petition. The transcript of that hearing is an exhibit in this record. It further appears in this record that petitioner was granted an evidentiary hearing on May 16, 1969, in the trial court wherein his conviction was imposed. The trial judge dismissed his petition after a finding of fact and law. On June 19, 1969, the attention of the court was called to T.C.A. 40-3803, as amended, providing that to hear post-conviction cases the Chief Justice of the Supreme Court shall designate a judge other than the one who presided at the criminal trial. The trial court granted petitioner a new hearing and transferred the matter to another division of the Criminal Court of Hamilton County. On October 16, 1969, after another evidentiary hearing the petition was dismissed by order after a finding of fact and law on December 17, 1969.
Through court-appointed counsel petitioner alleges that his conviction is void and the trial court erred in dismissing his petition on the following grounds: (1) he was denied a speedy trial; (2) the confes
It was held in State ex rel. Lawrence v. Henderson, Tenn.Crim.App., 433 S.W.2d 96, that:
“In considering these Assignments of Error, we must adhere to the settled rule that the findings of the trial court, upon questions of fact, are conclusive unless this Court finds that the evidence preponderates against the lower court’s judgment. State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256; State ex rel. Johnson v. Mainard, 188 Tenn. 501, 221 S.W.2d 531; Gray v. Johnson, (6th Cir., 1965) 354 F.2d 986; Bates v. Meadows, (6th Cir., 1966) 358 F.2d 674.
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“The burden of proving his allegations that his conviction and sentence are void was on the petitioner. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 381 S.W.2d 290; State ex rel. George v. Bomar, 216 Tenn. 82, 390 S.W.2d 232. He has not carried that burden. * * * ”
Nor has petitioner in this record.
The trial court found petitioner’s trial was reached in regular order and there was no undue delay. The record supports this finding of the trial court. Moreover, petitioner should have raised this question prior to his plea of not guilty.
Petitioner’s contention that his confession was extorted by force by the arresting officers, which testimony was repudiated by the arresting officer and his contention pertaining to his not being allowed to testify are fact situations which the court has resolved adversely to the petitioner. See Lloyd v. State, supra. The assignments are accordingly overruled.
Petitioner contends he was denied his right to appeal by being in fear of receiving the death sentence in a second trial if he was successful. Petitioner cites Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811, as his supporting authority. Petitioner’s own testimony in this record refutes his contention. He testified that he has never been scared a day in his life and that he was not concerned about receiving a death sentence on this charge. Furthermore, the law refutes the contention of petitioner that if he were successful on his writ in obtaining a new trial he would be subjected to all of the penalties pertaining thereto on the new trial. In other words, the argument is put forth that the doctrine enunciated in Commonwealth v. Littlejohn, supra, would prohibit any increased punishment, which is not the law. See Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970).
Further, petitioner’s contention is untenable in that if petitioner were successful in obtaining a new trial he would then be confronted with receiving a death sentence which he alleges now is the factor that he asserts deterred his seeking an appeal. The trial court, as noted, found as fact that petitioner was not denied his right to appeal. Lloyd v. State, supra.
All contentions of petitioner weighed and found wanting the judgment of the trial court is affirmed.
We commend court-appointed counsel for his very able and conscientious representation of petitioner.