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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE AUGUST 1997 SESSION

FILED
October 30, 1997

Cecil W. Crowson Appellate Court Clerk OTHA BOMAR, Appellant, vs. STATE OF TENNESSEE, Appellee. ) ) ) ) ) ) ) ) ) )

C.C.A. No. 01C01-9607-CR-00325 Davidson County Honorable Walter C. Kurtz, Judge (Post Conviction)

FOR THE APPELLANT: JENNIFER L. SMITH (on appeal) Attorney at Law P.O. Box 92547 Nashville, TN 37209 STEPHEN F. W OOD, JR. (at hearing) Attorney at Law 424 Church St., Ste. 2000 Nashville, TN 37219

FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General & Reporter PETER M. COUGHLAN Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493 VICTOR S. JOHNSON III District Attorney General KYMBERLY HAAS Assistant District Attorney General Washington Square 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649

OPINION FILED: ____________________

AFFIRMED IN PART, REVERSED IN PART, REMANDED CURWOOD WITT JUDGE

OPINION The appellant, Otha Bomar, appeals the Davidson County Criminal Court's denial of his petition for post-conviction relief. Bomar is presently serving a 20-year sentence for second degree murder. State v. Otha Bomar, No. 01C019203-CC-00065 (Tenn. Crim. App., Nashville, Dec. 10, 1992), perm. app. denied (Tenn. 1993). In his amended petition, Bomar alleged his conviction was infirm in numerous respects. Following a hearing, the lower court found all of his claims without merit. In his appeal to this court, Bomar raises two issues. 1. Whether the trial court erred in dismissing his petition where the state failed to file a response to the petition or those parts of the record material to the issues raised by the petition as required by Tennessee Code Annotated section 40-30-114(a) and (b). Whether the trial court erred in failing to include findings of fact and conclusions of law on each issue presented in its order dismissing the petition, contrary to Tennessee Code Annotated section 40-30-118(b).

2.

On review, we affirm the judgment of the trial court in part, reverse in part, and remand to the trial court.

The pertinent facts are these. The petitioner filed his post-conviction action on March 6, 1995,1 and counsel was appointed. The petitioner filed two pro se petitions, and his counsel filed an amended petition. Contrary to Tennessee Code Annotated section 40-30-104(b), the documents supporting the petitioner's allegations, particularly the record of trial and direct appeal, were not attached to these three petitions. Moreover, no excuse was offered by petitioner or his counsel for failure to attach the necessary documents. See Tenn. Code Ann.

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