David Thurman v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 19, 1999
• Docket: 03C01-9809-CR-00312
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED February 19, 1999 DAVID ALLEN THURMAN, * C.C.A. NO. 03C01-9809-CR-00312 Cecil Crowson, Jr. Appellate C ourt Clerk Appellant, * Hamilton County

VS. * HON. DOUGLAS A. MEYER

STATE OF TENNESSEE, * AFFIRMED - RULE 20

Appellee. *

ORDER

This matter is before the Court on the State’s motion requesting that

the judgment in the above-styled case be affirmed pursuant to Ct. of Crim. App.

Rule 20. The petitioner appeals the trial court’s denial of post-conviction relief. On

April 2, 1981, the petitioner pled guilty to burglary, grand larceny, and felonious

assault. He received an effective sentence of five (5) years. On July 21, 1981,

petitioner pled guilty to forgery and receiving stolen property. The trial court ordered

that his sentences in these cases run concurrently with the previous sentences. On

January 23, 1996, the petitioner filed a petition for post-conviction relief. The post-

conviction court initially held the case in abeyance until the Tennessee Supreme

Court issued an opinion in Carter v. State, 952 S.W.2d 417 (Tenn. 1997).

Thereafter, on February 11, 1998, the post-conviction court dismissed the petition

as being barred by the statute of limitations. On March 9, 1998, the petitioner

appealed the post-conviction court’s judgment. The petitioner contends that Tenn.

Code Ann. § 40-30-201 provided a one year window of opportunity, expiring on May

10, 1996, in which he could file a petition for post-conviction relief. We conclude

that this is an appropriate case for affirmance pursuant to Rule 20.

Following the legislature’s enactment of the Post-Conviction Procedure Act of 1995, a petitioner may file a petition for post-conviction relief within one (1)

year of the date of the final action of the highest state court to which an appeal is

taken. Tenn. Code Ann. § 40-30-202. In this case, it appears from the record

before this court that the petitioner’s convictions became final in 1981. In Carter,

the Tennessee Supreme Court held that under the previous act “any petitioner

whose judgment became final on or before July 1, 1986, had until July 1, 1989, to

file a petition for post-conviction relief.” 952 S.W.2d at 418. Furthermore, regarding

the enabling provision of the new act, the Court held that “petitioners for whom the

statute of limitations expired prior to the effective date of the new Act, i.e., May 10,

1995, do not have an additional year in which to file petitions for post conviction

relief.” Id. at 418. The Court explained that Tenn. Code Ann. § 40-30-202 was “not

intended to revive claims that were barred by the previous statute of limitations.” Id.

at 420.

The petitioner filed his petition for post-conviction relief fifteen years

after the last judgment against him. Therefore, the petition is barred by the one (1)

year statute of limitations. Furthermore, the petitioner has not alleged that any of

the exceptions to the statute of limitations set forth in Tenn. Code Ann. § 40-30-

202(b) are applicable to his case.

Accordingly, pursuant to Rule 20 of the Tennessee Court of Criminal

Appeals, we affirm the judgment of the trial court.

Costs are taxed to the State as the appellant is indigent.

All of which is so ORDERED. ________________________

Norma McGee Ogle, Judge

CONCUR:

________________________

Gary R. Wade, Presiding Judge

Joseph M. Tipton, Judge