Dyer v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1998 SESSION September 23, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk THOMAS RAY DYER, ) ) Appellant, ) No. 03C01-9712-CR-00515 ) ) Knox County v. ) ) Honorable Richard Baumgartner, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

For the Appellant: For the Appellee:

Mark E. Stevens John Knox Walkup District Public Defender Attorney General of Tennessee and and John Halstead Clinton J. Morgan Assistant Public Defender Assistant Attorney General of Tennessee 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243-0493 (AT TRIAL) Randall E. Nichols Mark E. Stevens District Attorney General District Public Defender and and Marsha Selecman Paula R. Voss Assistant District Attorney General John Halstead City-County Building Assistant Public Defenders Knoxville, TN 37902 1209 Euclid Avenue Knoxville, TN 37921 (ON APPEAL)

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The petitioner, Thomas Ray Dyer, appeals as of right from the Knox

County Criminal Court’s order dismissing his petition for post-conviction relief as

untimely filed. The petitioner asserts that his illiteracy should serve as a basis for

waiving the statute of limitations. We disagree.

The petitioner was convicted on June 13, 1988, upon guilty pleas, of

second degree burglary, grand larceny, and attempting to introduce drugs into a county

jail, and received an effective sentence of twenty-one years. He filed his petition for

post-conviction relief on March 30, 1995, asserting various constitutional violations.

The petition contains no allegation about why it was not filed earlier. It has not been

amended by counsel. 1

After hearing arguments from counsel and unsworn statements by the

petitioner relative to his claimed illiteracy, the trial court dismissed the petition without

an evidentiary hearing because the then applicable statute of limitations of three years

from the end of the convicting cases had already run. It stated that the fact that a

petitioner was illiterate would not toll the running of the statute of limitations.

The petitioner acknowledges that this court has previously stated illiteracy

and personal ignorance are not sufficient grounds for avoiding the running of the

statute. See Bernard Nelson v. State, No. 01C01-9212-CC-00375, Montgomery County

(Tenn. Crim. App. Nov. 18, 1993); see also Raymond Dean Willis v. State, No. 01C01-

9211-CR-00359, Davidson County (Tenn. Crim. App. Oct. 21, 1993), app. denied

1 Ordinarily, a petition that shows on its face that it was filed after the statute of limitations has run and fails to allege adequate grounds to toll the running of the statute is subject to dismissal upon the pleadings without any hearing. Such was not done in this case, with the trial court listening to an issue not raised by the plead ings.

2 (Tenn. Mar. 7, 1994). (Ignorance of existence of statute of limitation does not toll

running of the statute.) He urges us, though, to reconsider and to hold that an inmate’s

ignorance of the law, when caused by illiteracy, constitutes sufficient cause to waive the

limitation period.

We do not believe that this case comes to us in a procedural or

substantive posture that would warrant any change in our view of the law. The

judgment of the trial court is affirmed.

_______________________________ Joseph M. Tipton, Judge

CONCUR:

____________________________ Joe G. Riley, Judge

_____________________________ Thomas T. Woodall, Judge