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Phillips v. State

Court of Criminal Appeals of Tennessee. at Knoxville
Jan 19, 1996
C.C.A. Nos. 03C01-9504-CR-00123 03C01-9504-CR-00124 (Tenn. Crim. App. Jan. 19, 1996)

Opinion

C.C.A. Nos. 03C01-9504-CR-00123 03C01-9504-CR-00124.

January 19, 1996.

Appeal from ANDERSON COUNTY, HON. JAMES B. SCOTT, JR., JUDGE.

For the Appellants: J. Thomas Marshall, Jr., District Public Defender.

For the Appellee: Charles W. Burson, Attorney General, Hunt S. Brown, Assistant Attorney General, James N. Ramsey, District Attorney General, Jan Hicks, Assistant District Attorney General.


AFFIRMED


OPINION

In July 1981, the petitioners were sentenced to serve life for first degree murder. The Court of Criminal Appeals affirmed the convictions on November 4, 1986. Permission to appeal was denied by the Supreme Court on February 9, 1987. The petitioners filed their petitions for post-conviction relief on December 30, 1993.

On November 21, 1994, the trial court dismissed the petition for post-conviction relief because they were filed beyond the time in which the statute of limitations had run. Tenn. Code Ann. § 40-30-102.

We affirm the judgments.

The petitioners claim they did not timely file their petition for post-conviction relief because their counsel gave them erroneous advice which led to their failure to timely file a petition for post-conviction relief.

This Court, in an opinion by the most able Judge Tipton, held in State v. Phillips, 904 S.W.2d 23 (Tenn.Crim.App. 1995) that incompetency of counsel gives no excuse for a relief from a failure to timely file a petition for post-conviction relief.

We need not, and do not, reach the question of incompetency of counsel as alleged by the petitioner.

The petitioners contend this Court should adopt a rule applied to medical malpractice cases which triggers the running of the statute of limitations from the time the injured party discovered the injury, rather than stating the time the statute commences to run from the date of the medical surgery. This Court has consistently rejected the application of this rule to post-conviction proceedings. See Jackie Payne v. State, (Anderson County, C.C.A. No. 03C01-9310-CR-00349, filed at Knoxville, January 11, 1995). We see no reason to depart from the rule in Payne.

The petitioners further argue that the statute of limitations should not have begun to run until April 19, 1988, the date of the last action on petitions for writs of coram nobis filed by them to attack the convictions. Even if this would toll the running of the statute, which it did not do, the time period from April 19, 1988 until December 30, 1993 is more than the three year statute of limitations applicable in this case.

We find the petitioners are entitled to no relief in this case, and we affirm the judgments of the trial court.

Costs of appeal are taxed equally to appellants Charles Phillips and Eddie Phillips.

_____________________________________ John K. Byers, Senior Judge

CONCUR:

_______________________________________________________________ William M. Barker, Judge

_________________________________________________________________ F. Lee Russell, Special Judge


Summaries of

Phillips v. State

Court of Criminal Appeals of Tennessee. at Knoxville
Jan 19, 1996
C.C.A. Nos. 03C01-9504-CR-00123 03C01-9504-CR-00124 (Tenn. Crim. App. Jan. 19, 1996)
Case details for

Phillips v. State

Case Details

Full title:EDDIE PHILLIPS and CHARLES PHILLIPS, Appellants, v. STATE OF TENNESSEE…

Court:Court of Criminal Appeals of Tennessee. at Knoxville

Date published: Jan 19, 1996

Citations

C.C.A. Nos. 03C01-9504-CR-00123 03C01-9504-CR-00124 (Tenn. Crim. App. Jan. 19, 1996)