Opinion
No. 01C01-9612-CC-00521.
April 24, 1997.
(No. 5856 Below), GRUNDY COUNTY, The Hon. Thomas W. Graham, (Denial of Post-Conviction Relief), AFFIRMED PURSUANT TO RULE 20.
ORDER
This matter is before the Court upon the state's motion requesting that the judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules.
It appears that the final judgment in the petitioner's case was entered on May 4, 1995. Subsequently, on September 24, 1996, the petitioner filed his petition for post-conviction relief. Upon the state's motion, the trial court dismissed the petition without a hearing upon a finding that the petition was barred by the one-year statute of limitation. We agree.
Pursuant to T.C.A. § 40-30-206(a), a petitioner must petition for post-conviction relief within one year of the date of the final action of the highest state appellate court to which an appeal was taken. The Compiler's Notes to T.C.A. § 40-30-201 states that the 1995 Post-Conviction Act governs all petitions for post-conviction relief filed after May 10, 1995. Moreover, the Compiler's Notes indicate that "any person having ground for relief recognized under this part shall have at least one (1) year from May 10, 1995, to file a petition or a motion to reopen a petition under this part."
Under T.C.A. § 40-30-202(b), a court does not have jurisdiction to consider a petition for post-conviction relief if it was filed outside the one-year statute of limitation unless (1) the claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required; (2) the claim in the petition is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) the claim in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid.
In the present case, the petitioner filed his petition for post-conviction relief on September 24, 1996. Accordingly, the petition is governed by the 1995 Post-Conviction Act, and the petition was filed outside the statute of limitation set forth in T.C.A. § 40-30-202(a). Moreover, the petitioner has failed to show that any of his claims fall within one of the exceptions set forth in T.C.A. § 40-30-202(b).
IT IS, THEREFORE, ORDERED that the state's motion to affirm the judgment of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is granted, and the judgment of the trial court is affirmed. It appearing that the appellant is indigent, costs of these proceedings are taxed to the state.
ENTER, this the ___ day of April, 1997.
_____________________________ THOMAS T. WOODALL, JUDGE
CONCUR:
_____________________________ DAVID H. WELLES, JUDGE
_____________________________ JERRY L. SMITH, JUDGE