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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE NOVEMBER 1997 SESSION

FILED
December 23, 1997 Cecil Crowson, Jr.
Appellate C ourt Clerk

RICKY LEE WOMAC, Appellant, V.

STATE OF TENNESSEE, Appellee.

) ) C.C.A. No. 03C01-9608-CR-00294 ) ) McMinn County ) ) Honorable Mayo L. Mashburn, Judge ) ) ) (Post-Conviction) )

FOR THE APPELLANT: Ricky Lee Womac, Pro Se Northeast Correctional Center P.O. Box 5000 Mountain City, TN 37683

FOR THE APPELLEE: John Knox Walkup Attorney General & Reporter Peter M. Coughlan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493 Jerry N. Estes District Attorney General 203 E. Madison Avenue P.O. Box 647 Athens, TN 37371

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION

The appellant, Ricky Lee Womac, was convicted of facilitation to commit first degree murder. On direct appeal his conviction was affirmed by this Court. Thereafter, the appellant filed a petition seeking post-conviction relief. The trial court summarily dismissed the petition without an evidentiary hearing finding the allegations, even if taken as true, did not state a claim upon which relief could be granted. Approximately forty-seven days after the trial court's dismissal became final, the appellant filed a notice of appeal to this Court. Upon review, we affirm.

The state argues that the appellant did not timely file his notice of appeal in accordance with T.R.A.P. 4(a). Therefore, the state contends this appeal is time barred. We agree that the appellant did not timely file his notice of appeal. However, we see no prejudice accruing to the state in considering the appellant's allegations. Therefore, in the interest of justice, we waive the appellant's untimely filing. State v. Mullins, 767 S.W.2d 668 (Tenn. Crim. App. 1988).

The appellant alleges that he received ineffective assistance of counsel. Specifically, he claims that his trial counsel communicated to him through his mother, failed to investigate allegations that he had been beaten by jail officials, and failed to pursue claims of an illegal investigation of the crime scene.

It is well settled that a clear but patently nonmeritorious petition may be dismissed summarily. Martucci v. State, 872 S.W.2d 947 (Tenn. Crim. App. 1993). A petition which is unclear to the extent that it cannot be so dismissed requires the appointment of counsel. Id. at 949. If the appointed counsel determines that the appellant has a valid ground to proceed, he or she should file an amended petition. Id. Tenn. Code Ann.

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