IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs January 23, 2002 ROY C. SMITH, JR. v. STATE OF TENNESSEE Direct Appeal from the Circuit Court for Lauderdale County NO . 5472

NO . W2001-01457-CCA-R3-CD - FILED SEPTEMBER 10, 2002

James Curwood Witt, Jr., J., concurring in results only.

I concur in the results reached by the majority. Although I agree that the petitioner’s sentence may be vulnerable to a proper habeas corpus attack, I see no basis for commenting that the petitioner was convicted pursuant to a statute that was not in effect at the time the offenses were committed.

Although the petitioner was indicted and apparently convicted pursuant to Tennessee Code Annotated section 39-13-522, proscribing rape of a child, that statutory provision was merely a recodification of the rape-of-a-child prong of aggravated rape previously contained in section 39- 13-502(a)(4). The elements of the offense are the same. Thus, in the form of section 39-13- 504(a)(4), rape of a child was a proscribed offense at the time the offenses under review were committed.

___________________________________ James Curwood Witt, Jr., Judge