Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 14, 2016
from the Criminal Court for Sumner County No. 330-1998 Joe
Petitioner, Gerome Smith, appeals from the Sumner County
Criminal Court's denial of his pro se motion to vacate
the post-conviction court's judgment. On appeal, he
argues that the trial court erred in dismissing his motion.
Upon review, we affirm the judgment of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Smith, Nashville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Senior Counsel; Lawrence Ray Whitley, District
Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr. and J. Ross Dyer, JJ., joined.
CAMILLE R. McMULLEN, JUDGE
April 3, 1996, the Petitioner was convicted by a Sumner
County Jury of first degree murder and sentenced to life
imprisonment. Subsequently, the Petitioner filed numerous
pleadings challenging his conviction, including a direct
appeal, State v. Gerome J. Smith, No.
01C01-9610-CR-00421, 1998 WL 3618 (Tenn. Crim. App. Jan. 8,
1998); a post-conviction petition, Gerome Smith v.
State, No. M1999-02511-CCA-R3-PC, 2000 WL 1278374 (Tenn.
Crim. App. Aug. 31, 2000); and a petition for writ of error
coram nobis, State v. Gerome J. Smith, No.
M2009-01144-CCA-R3-CD, 2010 WL 3448047 (Tenn. Crim. App. Aug.
31, 2010). This court affirmed the Petitioner's
conviction on direct appeal and affirmed the denial and
dismissal of his petitions for post-conviction relief and
writ of error coram nobis. In 2007, this court and the
Tennessee Supreme Court also denied the Petitioner's
application for an extraordinary appeal pursuant to Rule 10
of the Tennessee Rules of Appellate Procedure. The Sumner
County Criminal Court denied multiple motions by the
Petitioner to re-open his post-conviction petition.
instant appeal, the Petitioner challenges the Sumner County
Criminal Court's denial of his original post-conviction
petition in which he claimed he received ineffective
assistance of counsel. Gerome Smith, 2000 WL
1278374, at *1. The post-conviction court denied the petition
on October 12, 1999, finding that counsel was effective.
Id. However, because counsel had failed to either
withdraw or file an application for permission to appeal this
court's decision to the Tennessee Supreme Court, the
post-conviction court allowed the Petitioner an opportunity
to file a delayed application for permission to appeal
pursuant to Rule 11 of the Tennessee Rules of Appellate
Procedure. Id. This court affirmed the
post-conviction court's decision and also granted the
Petitioner sixty days within which to seek Rule 11 review
pursuant to Tennessee Supreme Court Rule 28. Id. at
*3-4. On March 5, 2001, the Tennessee Supreme Court denied
the Petitioner's application for permission to appeal.
January 11, 2016, the Petitioner filed a pro se motion to
vacate the post-conviction court's October 12, 1999 order
denying relief. The Petitioner claims that the
post-conviction court lacked subject matter jurisdiction and
that the post-conviction proceeding and all subsequently
filed appeals were a "legal nullity." On April 13,
2016, the trial court entered an order summarily dismissing
the Petitioner's motion because "the authority cited
in Petitioner's [m]otion, Rule 28 of the Tennessee
Supreme Court Rules, does not allow for the relief sought by
the Petitioner" and because "the procedural history
of this matter . . . reflects that the Petitioner has already
pursued all means available to him in the [c]ourts of
Tennessee to seek relief from the conviction in this
cause." It is from this order that the Petitioner now
appeal, the Petitioner argues that the post-conviction court
did not have jurisdiction to hear his March 30, 1998 petition
for post-conviction relief and cites Tennessee Rule of Civil
Procedure 60.02 and Tennessee Supreme Court Rule 28 as
authority for the relief he seeks.
we note that there is no statutory provision in the
Post-Conviction Procedure Act for filing a motion to vacate a
judgment that is over seventeen years old. Additionally, the
Petitioner's final appeal of the October 12, 1999 order
at issue was denied by the Tennessee Supreme Court on March
5, 2001. Pursuant to the Post-Conviction Procedure Act, a
petitioner must file for post-conviction relief within one
year of the ...