Edward Nesbitt v. State

Opinion

FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE October 30, 1997 SEPTEMBER 1997 SESSION Cecil W. Crowson Appellate Court Clerk EDWARD F. NESBITT, ) ) Appellant, ) C.C.A. No. 01C01-9611-CR-00491 ) vs. ) Davidson County ) STATE OF TENNESSEE, ) Honorable Ann Lacy Johns, Judge ) Appellee. ) (Post Conviction) )

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM A. LANE JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 3236 Dilton Mankin Road Murfreesboro, TN 37127 DARYL J. BRAND Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

ROGER MOORE Assistant District Attorney General 222 Second Ave. North, Ste. 500 Nashville, TN 37201-1649

OPINION FILED: ____________________

AFFIRMED - RULE 20

CURWOOD WITT JUDGE OPINION

The petitioner, Edward F. Nesbitt, appeals the Davidson County

Criminal Court's dismissal of his petition for post-conviction relief. The petitioner is

serving a ten-year sentence following his May 18, 1990 guilty plea to the crime of

aggravated robbery. In this post-conviction action, filed December 8, 1995, he

challenges his conviction is various constitutional respects. The lower court found

his claims barred by the one-year statute of limitations and dismissed his petition

without appointing counsel or conducting a hearing. The petitioner acknowledges

more than three years passed between the date of his conviction and the filing of

his petition,1 but he alleges the 1995 Post-Conviction Procedure Act provided him

with a one-year window to file a claim. Having reviewed the record, we affirm the

judgment of the lower court pursuant to Rule 20 of the rules of this court.

Our supreme court recently held that the Post-Conviction Procedure

Act of 1995 did not revive previously expired post-conviction claims. Arnold Carter

v. State, --- S.W.2d ---, No. 03-S-01-9612-CR-00117 (Tenn., Knoxville, Sept. 8,

1997). Moreover, the petitioner before us has presented no claim which would

entitle him to untimely relief. See Tenn. Code Ann. § 40-30-206(g) (Supp. 1996);

Burford v. State, 8445 S.W.2d 204 (Tenn. 1992). His claims are barred. The trial

court did not err in summarily dismissing his petition. Tenn. Code Ann. § 40-30-

206(b) (Supp. 1996). As a result, we find no error of law requiring reversal. The

lower court's judgment is affirmed pursuant to Rule 20, Court of Criminal Appeals

Rules.

1 Prior to the 1995 amendments to the Post-Conviction Procedure Act, a petitioner had three years to file his claim. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995).

2 _______________________________ CURWOOD WITT, JUDGE

CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ THOMAS T. WOODALL, JUDGE