Brandon A. Miller v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 12, 1999
• Docket: 03C01-9803-CR-00102
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1999 SESSION March 12, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

BRANDON A. MILLER, ) C.C.A. NO. 03C01-9803-CR-00102 ) Defendant/Appellant ) ) McMINN COUNTY v. ) ) STATE OF TENNESSEE, ) HON. R. STEVEN BEBB, JUDGE ) Appellee ) (Post-conviction relief)

FOR THE APPELLANT: FOR THE APPELLEE:

Brandon A. Miller John Knox Walkup P.O. Box 1000 Attorney General & Reporter Petros, TN 37845 Michael J. Fahey, II Assistant Attorney General 425 Fifth Avenue North Second Floor, Cordell Hull Building Nashville, TN 37243

OPINION FILED

AFFIRMED JOHN K. BYERS SENIOR JUDGE OPINION

The trial court dismissed the defendant’s petition for post-conviction relief

because it was barred by the statute of limitations.

We affirm the judgment of the trial court.

The defendant pled guilty to several offenses in July and November of 1993.

On June 20, 1996, the defendant filed a petition for post-conviction relief.

At the time of the defendant’s convictions, the applicable statute of limitations

was three years. Tenn. Code Ann. § 40-30-102 (Repealed 1995). In 1995, the

applicable statute of limitations was reduced to one year. Tenn. Code Ann. § 40-30-

202(a).

At the time of the adoption of Tenn. Code Ann. § 40-30-202(a), the

defendant’s right to file a petition for post-conviction relief had not expired.

Therefore, his right to file a petition was not terminated by the reduction of the

limitation period from three years to one year. Under the holding in the case of

Carter v. State, 952 S.W.2d 417 (Tenn. 1997), the defendant had one year from the

date of the adoption of the statute fixing the limitation at one year to file a petition.

That would allow him to file a timely petition on or before May 10, 1996.

The defendant filed his petition on June 20, 1996. This was beyond the one

year period and the defendant did not show there was any exception for not

applying the one year limitation in this case.

The trial judge properly dismissed the petition.

The judgment of the trial court is affirmed. It appearing that the defendant is

indigent, costs of the appeal are taxed to the State.

John K. Byers, Senior Judge

-2- CONCUR:

James Curwood W itt, Jr., Judge

Norma McGee Ogle, Judge

-3-