OPINION
This сase presents an appeal from the judgment of the Court of Criminal Appeals affirming the dismissal of a petition for post-conviction relief by the trial court on the ground that when the petition in this case was heard a previously filed petition for post-conviction relief was pending in the Court of Criminal Appeals.
A majority of the Court of Criminal Appeals found that the trial court “had no jurisdiction to consider” the petition. Judge Joe B. Jоnes, dissenting, argued that the trial court erred in dismissing the petition. The well-reasoned dissent by Judge Jones resolves the issue, which this Court has not considered prеviously, in conformity with the provisions and purpose of the Post-conviction Procedure Act. That portion of Judge Jones’ opinion relating to this issue is adopted as the opinion of the Court. The adopted portion, footnotes omitted, reads as follows:
[T]he trial court had jurisdiction to hеar and determine the post-conviction suit in question even though a previous suit for post-conviction relief was pending in [the Court of Criminal Appeals] when it was filed.
The Post-Conviction Procedure Act [T.C.A. §§ 40-30-101 to -124] provides that a suit for post-conviction relief shall be filed “with the clerk of the court whеre the conviction occurred.” [T.C.A. § 40-30-103(a).] Since the appellant was convicted of murder in the first degree and sentenced to death in the Criminal Court of Sullivan County, the trial court had exclusive jurisdiction to hear and determine this suit. Moreover, since one of the grounds raised was the denial of the constitutional right to the effective assistance of counsel, the Honorable Edgar P. Calhoun, who presided at the appellant’s trial and is presently serving as judge of the Criminal Court of Sullivan County, was required to hear and determine this suit. [T.C.A. § 40-30-103(b)(1).] In summary, the trial court clearly had jurisdiction to hear and deter *118 mine the merits of the grounds raised by the appellant.
The judgment of the trial court is predicated upon a false premise. The judgment recites:
This court has no jurisdiction in this case.
The issue of the validity of the original judgment is before the Criminal Cоurt of Appeals. After appeal and transfer of a case to the appellate court, the trial court loses all jurisdiction to аct in the case. Davis v. Jones, 40 Tenn. [3 Head] 603 (1859); Suggs v. Suggs’ Executors, 1 Tenn. [1 Overton] 2 (1794); Locke v. Smith Funeral Service Corp., [180 Tenn. 18 ]171 S.W.2d 272 (1942). Obviously, lacking jurisdiction, this Court cannot treat the latest petition as an amendment to the earlier petitions. See also Holt v. State, 489 S.W.2d 845 (Tenn.Crim.App.1972), cert, denied, 1973.
No principle of law in this country permits the maintaining of multiple suits at the same time when each is seeking the same relief. This is elementary, and the Statе correctly cites specific authority. See Crain v. State, [2 Tenn.Crim.App. 67 ,]451 S.W.2d 695 (1969); Jones v. State, [2 Tenn.Crim. App. 284,]453 S.W.2d 433 (1970).
The fallacy in the trial court’s reasoning is that the suit which was pending in this Court and the present suit were sеparate and distinct suits. The two suits were filed under different docket numbers, and the grounds alleged in the two suits were not identical. In other words, neither the judgment of the trial court nor the appeal in the second suit bar, as a matter of law, the filing of a subsequent suit attacking the same identical judgment.
[See Swanson v. State,
The facts in this case are clearly distinguishable from the facts in
[Hunter v. State,
[1 Tenn.Cr.App. 392],
When
Hunter, Grain
and
Jones
were decided, the Post-Conviction Procedure Act provided that a person could institute a suit for post-conviction relief “at any time
after
he has exhausted his apрellate remedies or his time for appeal in the nature of a writ of error has passed and before the sentence has expired or has been fully satisfied.” [Tenn.Acts (1967), Ch. 310, § 1, now codified as T.C.A. § 40-30-102.] [Emphasis added]. The reason for this provision is obvious. If the appellate court reversed the petitioner’s conviction on direct appeal, the post-conviction suit would be moot. Also, it would be a waste of the State’s resourcеs to permit simultaneous review of the constitutional issues in two different forums. Of course, it is axiomatic that the Post-Conviction Procedure Act may not bе invoked as a substitute for an appeal or review of trial errors. [See
State v. Miller,
The provisions of the Pоst-Conviction Procedure Act do not, as a matter of law, bar multiple suits attacking the same conviction. [See
Swanson v. State,
... [T]he Act ... does not necessаrily contemplate that one and only one post-conviction petition will be allowed to any one petitioner in every case. Thе terms of the statute itself permit more than one petition when justified. Like any legislation, the Act is to be construed in pari materia to achieve its intended purpоses. T.C.A. § 40-30-105 expressly permits relief when the grounds were not recognized at the time of the conviction and have been *119 applied retroactively. This provision necessarily allows more than one petition to be filed in some cases.
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The simple fact that a petitioner has had one bite at the post-conviction apple does not ipso facto preclude another bite when the petitioner can show that no knowing and understanding waiver of a ground for relief was made, or that the claim was not previously determined, or that it was unavailable at the time of any prior prоceeding.
[
The rule fashioned by my colleagues brings meaning to the time tested adage that bad facts make bad law. Their effort to eradicate what appears to be an abuse of the post-conviction relief remedy has resulted in a rule that may bar a deserving petitioner from оbtaining relief. An example best illustrates this point.
A new constitutional right has been created, which requires retroactive application. This right renders the petitioner’s death sentence constitutionally void. The statute of limitations is about to expire. Furthermore, the appeal of a prior post-conviction suit is pending in this Court. Query: how will the petitioner be able to assert this right timely if the rule fashioned by my colleagues becomes law? It is certain that he cannot raise this new issue in the suit pending in this Court since our jurisdiction is limited to appellate matters. The assertion of this right will necessitatе an evidentiary hearing. It is also certain that if the petitioner is required to wait until his appeal has been resolved, the statute of limitations will prevent the assertion of this new right in a subsequent suit. In summary, the petitioner would [be executed] even though his death sentence was constitutionally infirm if the rule fashioned by my colleagues becomes law. Such a result would be repugnant to the provisions of the Act and frustrate one of its purposes.
In
Carter v. State,
The judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the trial court.